CONFIRMATION HEARINGS ON FEDEAL APPOINTMENTS, PART 2

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION ^

S. Hrg. 112-72, Pt.2

CONFIRMATION HEARINGS ON FEDERAL
APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

APRIL 13, MAY 4, and MAY 24, 2011

Serial No. J-112-4

PART 2

Printed for the use of the Committee on the Judiciary

S. Hrg. 112-72, Pt.2

CONFIRMATION HEARINGS ON FEDERAL
APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

APRIL 13, MAY 4, and MAY 24, 2011

Serial No. J-112-4

PART 2

Printed for the use of the Committee on the Judiciary

75-307 PDF

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2012

For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800
Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001

COMMITTEE ON THE JUDICIARY

PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa

DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah

CHUCK SCHUMER, New York JON KYL, Arizona

DICK DURBIN, Illinois JEFF SESSIONS, Alabama

SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas

AL FRANKEN, Minnesota MICHAEL S. LEE, Utah

CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma

RICHARD BLUMENTHAL, Connecticut

Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director

(II)

CONTENTS

April 13, 2011

STATEMENTS OF COMMITTEE MEMBERS

Page

Franken, Hon. Al, a U.S. Senator from the State of Minnesota 1

Grassley, Hon. Charles, a U.S. Senator from the State of Iowa 2

prepared statement 358

PRESENTERS

Bennet, Hon. Michael, a U.S. Senator from the State of Colorado, presenting
Richard B. Jackson, Nominee to be U.S. District Judge for the District

of Colorado 8

Brown, Hon. Scott P. (of Massachusetts), a U.S. Senator from the State
of Massachusetts presenting Lisa O. Monaco, Nominee to be Assistant

Attorney General, National Security, U.S. Department of Justice 10

Clyburn, Jame E., a Representative in Congress from the State of South
Carolina, presenting Henry F. Floyd, Nominee to be U.S. Circuit Judge

for the Fourth Circuit 11

Cornyn, Hon. John, a U.S. Senator from the State of Texas presenting Nelva
G. Ramos, Nominee to be U.S. District Judge for the Southern District

of Texas 4

Durbin, Hon. Dick, a U.S. Senator from the State of Illinois presenting
Sara L. Darrow, Nominee to be U.S. District Judge for the Central District

of Illinois 5

Graham, Hon. Lindsey, a U.S. Senator from the State of Southern Carolina
presenting Henry F. Floyd, Nominee to be U.S. Circuit Judge for the

Fourth Circuit 6

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas pre-
senting Nelva G. Ramos, Nominee to be U.S. District Judge for the South-
ern District of Texas 3

Udall, Hon. Mark (of Colorado), a U.S. Senator from the State of Colorado
presenting Richard B. Jackson, Nominee to be U.S. District Judge for
the District of Colorado 7

STATEMENTS OF THE NOMINEES

Darrow, Sara L., Nominee to be U.S. District Judge for the Central District

of Illinois 265

Biographical Information 267

Floyd, Henry F., Nominee to be U.S. Circuit Judge for the Fourth Circuit 12

Biographical Information 17

Jackson, Richard B., Nominee to be U.S. District Judge for the District

of Colorado 156

Biographical Information 157

Monaco, Lisa O., Nominee to be Assistant Attorney General, National Secu-
rity Division, U.S. Department of Justice 77

Biographical Information 83

Ramos, Nelva G., Nominee to be U.S. District Judge for the Southern District

of Texas 107

Biographical Information 108

(III)

IV

Page

QUESTIONS AND ANSWERS

Responses of Sara L. Darrow to questions submitted by Senator Grassley 314

Responses of Henry F. Floyd to questions submitted by Senator Grassley 317

Responses of Richard B. Jackson to questions submitted by Senator Grassley . 320

Responses of Lisa O. Monaco to questions submitted by Senator Grassley 326

Responses of Nelva G. Ramos to questions submitted by Senator Grassley 340

SUBMISSION FOR THE RECORD

Anderson, Norma V., Senator, Retired, Lakewood, Colorado, letter 343

Austin, H. Gregory, Denver, Colorado, March 18, 2011, letter 344

Beatty, Michael L., Attorneys at Law, Beatty & Wozniak, P.C., Denver, Colo-
rado, March 21, 2011, letter 346

Billy, Joseph, Jr., former Assistant Director of the FBI’s Counter Terrorism

Division, April 5, 2011, letter 347

Brennan, Daniel G., Chief of Police, City of Police Department, Wheat Ridge,
Colorado, April 8, 2011, letter 348

Campbell, Benton J., former Interim U.S. Attorney, Eastern District of New
York; Wan J. Kim, former Assistant Attorney General, Civil Rights Divi-
sion; Jeffrey A. Taylor, former U.S. Attorney, District of Columbia; Matthew
W. Fredrich, former Acting Assistant Attorney General, Criminal Division;
Chuck Rosenberg, former U.S. Attorney, Eastern District of Virginia; Ron-
ald J. Tenpas, former Assistant Attorney General, Environment and Nat-

ural Resources Division, April 4, 2011, joint letter 349

Coors, Peter H., Golden, Colorado, March 21, 2011, letter 350

Davidson, Janice B., Chief Judge, Colorado Court of Appeals, Denver, Colo-
rado, March 29, 2011, letter 351

Donoghue Elizabeth, Chair, Committee on the Judiciary of the New York

City Bar, New York, New York, June 14, 2011, letter 353

Enquist, Margie L., Judge, District Court, Golden, Colorado, March 18, 2011,

letter 354

Feeley, Michael F., Attorney at Law, Brownstein, Hyatt, Farber, Schreck,

Denver, Colorado, March 23, 2011, letter 355

Gleen, Marcy G., Holland & Hart, Denver, Colorado, March 31, 2011, letter ... 356

Haddon, Harold A., Haddon, Morgan and Foreman, P.C., Denver, Colorado,

March 29, 2011, letter 364

Hulon, Willie T., April 8, 2011, letter 366

Hutchison, Kay Bailey, a U.S. Senator from the State of Texas, prepared

statement 367

Kerry, John F., a U.S. Senator from the State of Massachusetts, prepared

statement 368

Lindsay, Sue, Golden, Colorado, March 25, 2011, letter 369

Maxfield, John R., P.C., Holland & Hart, Denver, Colorado, March 18, 2011,

letter 370

Menendez, MJ, Deputy Chief-OCDETF, U.S. Attorney, Denver Colorado,

March 28, 2011, letter 372

Michaels, Jane, Holland & Hart, Denver, Colorado, March 18, 2011, letter 375

Mink, Ted, Jefferson County Sheriff, Golden, Colorado, March 30, 2011, let-
ter 376

Mudd, Philip, George Washington University, Homeland Security Policy Insti-
tute, Washington, DC, statement 377

Mukasey, Michael B., Debevoise & Plimpton, LLP, New York, New York,

April 5, 2011, letter 378

Munch, Christopher J., Judge, Golden, Colorado, March 17, 2011, letter 379

Nieto, Henry E., Judge, Court of Appeals, Denver, Colorado, March 29, 2011,

letter 381

O’Donnell, Michael L., Wheeler Trigg O’Donnell LLP, Denver, Colorado,

March 24, 2011, letter 382

Oeffler, Lily W., District Court Judge, Golden, Colorado, letter 383

Paletta, Kevin, Chief of Police, Lakewood Police Department, Lakewood, Colo-
rado, March 30, 2011, letter 384

Pautler, Mark C., Senior Chief Deputy District Attorney, Jefferson County,

Colorado, March 28, 2011, letter 385

Perlmutter, Ed, a Representatives in Congress from the State of Colorado,

March 30, 2011, letter 387

V

Page

Phillips, Paul D., Holland & Hart LLP, Denver, Colorado, March 22, 2011,

letter 388

Polk, Dennis B., Attorneys at Law, Holley, Albertson & Polk, PC, Golden,

Colorado, March 30, 2011, letter 389

Polidori, Tuthanne, Senior Judge, Morrison, Colorado, letter 391

Ritter, Bill, Jr., Denver, Colorado, April 1, 2011, letter 393

Storey, Scott W., District Attorney, Jefferson County, Colorado, March 28,

2011, letter 395

Stuart, Ryan, Magistrate, State of Colorado, Golden Colorado, March 25,

2011, letter 397

Suthers, John W., Attorney General, Denver Colorado, March 24, 2011, letter 399
Terwilliger, George J., Ill, White & Case, Washington, DC, April 12, 2011

letter 400

Thomas, David J., Attorneys at Law, O’Brien & Thomas, LLC, Lakewood

Colorado, March 31, 2011, letter 402

Toll, Christopher H., P.C., Holland & Hart, Greenwood Village, Colorado,

March 28, 2011, letter 403

Wainstein, Kenneth L., O’Melveny & Myers LLP, Washington, DC, April

11, 2011, letter 405

Walsh, John F., U.S. Attorney, District of Colorado, U.S. Department of

Justice, Denver, Colorado, April 1, 2011, letter 407

Weir, Peter A., Senior Chief Deputy District Attorney, Jefferson County,

Colorado, March 31, 2011, letter 409

Wheeler, Malcolm E., Wheeier Trigg O’Donnell LLP, Denver, Colorado, March

21, 2011, letter 410

Witt, Maureen Reidy, Holland & Hart LLP., Greenwood Village, Colorado,

March 21, 2011, letter 411

May 4, 2011

STATEMENTS OF COMMITTEE MEMBERS

Coons, Christopher A., a U.S. Senator from the State of Delaware 423

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa 424

prepared statement 724

Schumer, Hon. Chuck, a U.S. Senator from the State of New York, prepared
statement 727

PRESENTERS

Collins, Hon. Susan M., a U.S. Senator from the State of Maine presenting
Nancy Torresen of Maine, Nominee to be District Judge for the District

of Maine 416

Graham, Hon. Lindsey, a U.S. Senator from the State of South Carolina
presenting Timothy M. Cain, of South Carolina, Nominee to be District

Judge for the District of South Carolina 422

Landrieu, Hon. Mary L., a U.S. Senator from the State of Louisiana pre-
senting Nannettee Jolivette Brown, of Louisiana, Nominee to be District

Judge for the Eastern District of Louisiana 418

McCaskill, Hon. Claire, a U.S. Senator from the State of Missouri presenting
John A. Ross, of Missouri, Nominee to be District Judge for the Eastern

District of Missouri 420

Schumer, Hon. Charles E., a U.S. Senator from the State of New York
presenting William F. Kuntz II, of New York, Nominee to be District

Judge for the Eastern District of New York 417

Snowe, Hon. Olympia J., a U.S. Senator from the State of Maine presenting
Nancy Torresen of Maine, Nominee to be District Judge for the District

of Maine 414

Vitter, Hon. David, a U.S. Senator from the State of Louisiana presenting
Nannettee Jolivette Brown, of Louisiana, Nominee to be District Judge
for the Eastern District of Louisiana 419

STATEMENT OF THE NOMINEES

Brown, Nannette Jolivette, of Louisiana, Nominee to be District Judge for
the Eastern District of Louisiana 464

VI

Page

Cain, Judge Timothy M., of South Carolina, Nominee to be District Judge

for the District of South Carolina 557

biographical information 558

biographical information 465

Kuntz, William F., II, of New York, Nominee to be District Judge for the

Eastern District of New York 514

biographical information 515

Ross, Judge John A., of Missouri, Nominee to be District Judge for the

Eastern District of Missouri 612

biographical information 613

Torresen, Nancy, of Maine, Nominee to be District Judge for the District

of Maine 424

biographical information 426

QUESTIONS AND ANSWERS

Responses of Nannette Jolivette Brown to questions submitted by Senators

Grassley and Klobuchar 688

Responses of Timothy M. Cain to questions submitted by Senators Grassley

and Klobuchar 694

Responses of William F. Kuntz, II to questions submitted by Senators Grass-

ley and Klobuchar 698

Responses of John A. Ross to questions submitted by Senators Grassley

and Klobuchar 702

Responses of Nancy Torresen to questions submitted by Senators Grassley
and Klobuchar 706

SUBMISSIONS FOR THE RECORD

American Bar Association, Hill, Benjamin H., Ill, Chair, Washington, DC:

March 3, 2011, letter 711

February 17, 2011, letter 713

March 10, 2011, letter 715

December 1, 2010, letter 717

March 3, 2011, letter 719

Collins, Hon. Susan M., a U.S. Senator from the State of Maine, prepared

statement 721

Donoghue, Elizabeth, Chair, New York City Bar, April 27, 2011, letter 723

May 24, 2011

STATEMENTS OF COMMITTEE MEMBERS

Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota 729

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa 733

prepared statement 1421

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared

statement 1439

Schumer, Hon. Charles, a U.S. Senator from the State of New York, prepared
statement 1445

PRESENTERS

Cornyn, Hon. John, a U.S. Senator from the State of Texas presenting Marina
Garcia Marmolyo, Nominee to be U.S. District Judge for the Southern

District of Texas 730

Christensen, Hon. Donna, a Representatives in Congress from the State of
Virgin Islands presenting Wilma Antoinette Lewis Nominee to be Judge

for the District Court of the Virgin Islands 731

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas, pre-
senting Marina Garcia Marmolejo, Nominee to be U.S. District Judge for
the Southern District of Texas 735

VII

Page

STATEMENT OF THE NOMINEES

Green, Michael C., Nominee to be U.S. District Judge for the Western District

of New York 905

biographical information 906

Lewis, Wilma Antionette, Nominee to be U.S. District Court of the Virgin

Islands 1006

biographical information 1008

Marmolejo, Marina Garcia, Nominee to be U.S. District Judge for the South-
ern District of Texas of Texas 865

biographical information 867

Quagliotti, Major General Marilyn A., USA (ret.), Nominee to be Deputy

Director for Supply Reduction, Office of National Drug Control Policy 1108

biographical information 1114

Six, Steve, Nominee to be U.S. Circuit Judge for the Tenth Circuit 734

biographical information 745

QUESTIONS AND ANSWERS

Responses of Michael C. Green to questions submitted by Senators Grassley

and Coburn 1126

People v. Abdallah Cases 1139

People v. Mateo Cases 1147

People v. Owens Cases 1269

Responses of Wilma A. Lewis to questions submitted by Senator Grassley 1361

Responses of Marina Garcia Marmolejo to questions submitted by Senators

Grassley and Coburn 1372

Responses of Marilyn A. Quagliotti to questions submitted by Senators Grass-

ley and Coburn 1375

Responses of Stephen N. Six to questions submitted by Senators Grassley
and Coburn 1388

SUBMISSIONS FOR THE RECORD

Christensen, Hon. Donna, a Representatives in Congress from the State of

Virgin Islands 1416

Croom, Charles E., Lt. Gen (USAF, Retired), Falls Church, Virginia, letter 1421

District Attorneys Association of the State of New York, Derek P. Cham-
pagne, President, Malone, New York, April 27, 2011, letter 1423

Gilliband, Hon. Kirsten E., a U.S. Senator from the State of New York,

prepared statement 1425

Keeton, Douglas W., Small Business Owner, Veteran, Silver Spring, Mary-
land, March 21, 2011, letter 1438

McCaffrey, Barry R., General, (Retired) U.S. Army, March 2, 2011, letter 1442

Malone, Shawn-Michael, Senator of the Virgin Islands, St. Thomas, Virgin

Islands, May 23, 2011, letter 1443

Speer, Gary £)., Lieutenant General, U.S. Army (Retired), Springfield, Vir-
ginia, March 21, 2011, letter 1446

VIII

Page

State Attorneys General, under-signed, John Suthers, Attorney General of
Colorado; Dustin McDaniel, Attorney General of Arkansas; Tom Miller,
Attorney General of Iowa; George Jepsen, Attorney General of Connecticut;
Joseph R. “Beau” Biden, III, Attorney General of Delaware; Lawrence G.
Wasden, Attorney General of Idaho; Jack Conway, Attorney General of
Kentucky; Douglas F. Gansler, Attorney General of Maryland; Jim Hood,
Attorney General of Mississippi; Steve Bullock, Attorney General of Mon-
tana; Michael A Delaney, Attorney Genera of New Hampshire; Leonardo
M. Rapadas, Attorney general of Guam; Greg Zoeller, Attorney General
of Idiana; James D.“Budy” Cadwell, Attorney General of Louisiana; Martha
Coakley, Attorney General of Massachusetts; Chris Koster, Attorney Gen-
eral of Missouri; Catherine Cortez Masto, Attorney General of Nevada;

Gary K. King, Attorney General of New Mexico; Roy Cooper, Attorney
General of North Carolina; Kohn Kroger, Attorney General of Oregon;

Marty J. Jackley, Attorney General of South Dakota; Mark L. Shurtleff,
Attorney General of Utah; Rob McKenna, Attorney General of Washington;
Gregory A. Phillips, Attorney General of Wyoming; Wayne K. Stenehjem,
Attorney General of North Dakota; Peter Kilmartin Attorney General of
Rhode Island; Robert E. Cooper, Jr., Attorney General of Tennessee; Wil-
liam H. Sorrell, Attorney General of Vermont, and Darrell V. McGraw,

Jr., Attorney General of West Virginia, June 8, 2011, joint letter 1448

Stephan, Robert T., Attorney at Law, Overland Park, Kansas, June 20, 2011,

letter 1452

Tacha, Deanell Reece, Duane and Kelly Roberts Dean and Professor of Law,
Pepperdine University School of Law, Malibu, California, June 24, 2011,

letter 1453

Turnbull, Charles W., former Governor, May 23, 2011, letter 1454

University of Kansas, School of Law, Stephen W. Mazza, Dean and Professor
of Law; James K. Logan, former Dean; Martin W. Dickinson, former Dean;
Michael J. Davis, former Dean, and Michael H. Hoefich, former Dean,

Lawrence, Kansas, June 27, 2011, joint letter 1455

Vaught Wilma L., Brigadier General, USAF, retired, President, Women in
Military Service for America Memorial Foundation, Inc., Washington, DC,

March 25, 2011, letter 1457

Warner, Hon. Mark, a U.S. Senator for the State of Virginia, prepared state-
ment 1458

ALPHABETICAL LIST OF NOMINEES

Brown, Nannette Jolivette, of Louisiana, Nominee to be District Judge for

the Eastern istrict of Louisiana 464

Cain, Judge Timothy M., of South Carolina, Nominee to be District Judge

for the District of South Carolina 557

Darrow, Sara L., Nominee to be U.S. District Judge for the Central District

of Illinois 265

Floyd, Henry F., Nominee to be U.S. Circuit Judge for the Fourth Circuit 12

Green, Michael C., Nominee to be U.S. District Judge for the Western District

of New York 905

Jackson, Richard B., Nominee to be U.S. District Judge for the District

of Colorado 156

Kuntz, William F., II, of New York Nominee to be District Judge for the

Eastern District of New York 514

Lewis, Wilma Antionette, Nominee to be U.S. District Court of th Virgin

Islands 1006

Marmolejo, Marina Garcia, Nominee to be U.S. District Judge for the South-
ern District of Texas of Texas 865

Monaco, Lisa O., Nominee to be Assistant Attorney General, National Secu-
rity Division, U.S. Department of Justice 77

Quagliotti, Major General Marilyn A., USA (ret.), Nominee to be Deputy

Director for Supply Reduction, Office of National Drug Control Policy 1108

Ramos, Nelva G., Nominee to be U.S. District Judge for the Southern District

of Texas 107

Ross, Judge John A., of Missouri, Nominee to be District Judge for the

Easter District of Missouri 612

Six, Steve, Nominee to be U.S. Circuit Judge for the Tenth Circuit 734

Torresen, Nancy, of Maine, Nominee to be District Judge for the District
of Maine 424

NOMINATIONS OF HENRY F. FLOYD, NOMINEE
TO BE UNITED STATES CIRCUIT JUDGE
FOR THE FOURTH CIRCUIT; LISA O.
MONACO, NOMINEE TO BE ASSISTANT AT-
TORNEY GENERAL, NATIONAL SECURITY DI-
VISION; NELVA G. RAMOS, NOMINEE TO BE
UNITED STATES DISTRICT JUDGE FOR THE
SOUTHERN DISTRICT OF TEXAS; RICHARD
B. JACKSON, NOMINEE TO BE UNITED
STATES DISTRICT JUDGE FOR THE DIS-
TRICT OF COLORADO; AND, SARA L.
DARROW, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE CENTRAL DIS-
TRICT OF ILLINOIS

WEDNESDAY, APRIL 13, 2011

U.S. Senate,

Committee on the Judiciary,

Washington, DC.

The Committee met, pursuant to notice, at 3:02 p.m., Room SD-
226, Dirksen Senate Office Building, Hon. A1 Franken, presiding.

Present: Senators Durbin, Grassley, and Graham.

OPENING STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR
FROM THE STATE OF MINNESOTA

Senator Franken. This hearing is called to order.

Before we begin, I would like to welcome all of you here today
to the Senate Judiciary Committee. Providing the President our ad-
vice and consent on judicial and executive nominations is one of the
most important jobs we have as Senators, and it is a special re-
sponsibility for the Judiciary Committee.

Today we will consider five nominations: Judge Henry F. Floyd,
for United States Circuit Judge for the Fourth Circuit; Lisa 0.
Monaco, for the Assistant Attorney General of the Department of
Justice’s National Security Division; Judge Nelva G. Ramos, for
United States District Judge for the Southern District of Texas;
Judge Richard B. Jackson, for United States District Judge for the
District of Colorado; Sara L. Darrow, for United States District
Judge for the Central District of Illinois.

(l)

2

We are fortunate to have some of the nominees’ home State Sen-
ators and Representatives here to introduce them, and we will turn
to them shortly.

But before we do, I will turn the floor over to my friend, the
Ranking Member, Senator Grassley, for his opening remarks.

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR
FROM THE STATE OF IOWA

Senator Grassley. Thank you, Mr. Chairman.

We have a nominee to be a Circuit Judge, and three to be Dis-
trict Court Judges. In addition, we will hear from the nominee to
be Assistant Attorney General heading the National Security Divi-
sion, with the Department of Justice.

I join you all, as the Chairman has, in welcoming all of you.

Ms. Lisa Monaco — Monaco, like the city of Monaco or the state
of Monaco, right?

Senator Franken. I believe it is a nation.

Senator Grassley. Nation.

Senator Franken. Municipality.

Senator Grassley. You do not have to convince them.

Senator Franken. It is a principality? OK. Thank you. Well, Sen-
ator Graham is a huge gambler.

[Laughter.]

Senator Grassley. The National Security Division’s mission is to
carry out the department’s highest priority, combating terrorism
and other threats to national security. The division was created in
2006 as part of the PATRIOT Act reauthorization.

Much of the reorganization creating the division was to promote
a unified approach to accomplishing its mission. The structure of
the division was designed to ensure greater coordination between
prosecutors and law enforcement agencies, on the one hand, and
the intelligence community on the other.

Tearing down this wall, enhancing investigatory tools, stream-
lining national security investigations, and modernizing investiga-
tive authorities to take account of new and emerging technologies
are some of the reforms that we have made. And there is work to
be done, as we have recently heard from the FBI Director about
this. Reauthorization of the critical tools ought to be a priority of
this committee.

I will continue to work with the Chairman in pursuit of a perma-
nent extension of the Lone Wolf provisions of the roving electronic
surveillance provision and of the business records provisions.

In addition, I will work to preserve and strengthen other tools
available for our national security and law enforcement profes-
sionals.

In addition, we are considering four judicial nominees. Henry
Floyd, sitting U.S. District Judge in South Carolina, is nominated
to be U.S. Circuit Judge.

We have already confirmed four of the President’s nominees to
the fourth circuit. This is as many as were confirmed to that Cir-
cuit during the two terms of President Bush. I would note that
eight of President Bush’s nominees to the Fourth Circuit were re-
turned to the President, receiving no up or down vote by the Sen-
ate.

3

We are also considering three District Court nominations. They
are Sara L. Darrow, to be U.S. District Judge for the Central Dis-
trict of Illinois; Richard B. Jackson, for the District in Colorado;
and, Nelva Ramos, from the Southern District of Texas. All of these
vacancies are have been declared to be judicial emergencies.

I would note that the Colorado vacancy could have been filled
years ago. Gregory E. Goldberg was nominated to this seat in July
of 2008 by President Bush and, as with many of these nominees
by Bush, the Committee took no action.

Mr. Chairman, I will not repeat the biographical information of
our nominees. I commend each of them for their prior public serv-
ice and for their willingness to continue in public service.

I ask unanimous consent that the balance of my statement be
put in the record.

Senator Franken. Without objection.

[The prepared statement of Senator Grassley appears as a sub-
mission for the record.]

Senator Franken. Thank you, Senator Grassley.

As I said, we are fortunate to have some of these nominees’ home
State Senators, and I think, in the case of Judge Floyd, perhaps
Representative Clyburn will be coming.

Let us start with Senator Cornyn, my good colleague from Texas,
who will introduce Judge Ramos.

Senator Cornyn. Thank you, Chairman Franken, Senator Grass-
ley, Senator Graham. If I may withhold, and I see the senior Sen-
ator has just arrived just in time. If I could defer to her, I would
appreciate it very much.

Senator Franken. Absolutely.

Senator Hutchison.

Senator Hutchison. We always say that I am the senior Sen-
ator, but he has the gray hair.

[Laughter.]

PRESENTATION OF NELVA G. RAMOS, NOMINEE TO BE U.S.

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS,

PRESENTED BY HON. KAY BAILEY HUTCHISON, A U.S. SEN-
ATOR FROM THE STATE OF TEXAS

Senator Hutchison. Thank you, Mr. Chairman, for having this
hearing. And I am very pleased to be able to introduce our nomi-
nee, Nelva Gonzales Ramos, who has been nominated to serve as
a district judge for the southern district in Corpus Christi, Texas.

She graduated summa cum laude at Texas State University in
San Marcos with a degree in education. She then went on to re-
ceive her juris doctorate from my alma mater, the University of
Texas Law School, where she, again, graduated with honors.

After growing up in Port Lavaca, Texas, Judge Ramos now finds
herself in the very same area serving as a district court judge
where she has been for the last 10 years. She began her judicial
career in 1997 as a municipal court judge in Corpus Christi.

During these years, she has been routinely recognized by the
members of the Corpus Christi Bar Association as an outstanding
district judge. She has gained the respect of her colleagues because
of her demeanor on the bench. She is seen as fair and thoughtful
and is commended by her colleagues for her skilled legal mind.

4

Now, I read in a newspaper interview about her, when we nomi-
nated her, the President nominated her with our consent, and one
of the lawyers that appears in her court often said that when she
overrules his requests, which is not infrequent, that she always ex-
plains why and he acknowledges that she is usually right. So I
think that is the mark of a good judge.

I know that she has a solid understanding of the law and is well
qualified, and I recommend her without reservation to the com-
mittee.

Thank you, Mr. Chairman. And I thank my junior Senator.

Senator Franken. Thank you, Senator Hutchison.

Now, we will turn to Senator Cornyn, junior Senator.

Senator Cornyn. Thank you, Chairman Franken.

Senator Franken, I wonder if I might ask Judge Ramos and her
family to stand so we can identify them.

Senator Franken. Certainly. Welcome. Welcome to all of you.

PRESENTATION OF NELVA G. RAMOS, NOMINEE TO BE U.S.

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS,

PRESENTED BY HON. JOHN CORNYN, A U.S. SENATOR FROM

THE STATE OF TEXAS

Senator Cornyn. Thank you very much, Mr. Chairman. I saw
the judge’s husband and son, but I did not see her when I came
in. So I am glad she is here.

Senator Franken. We will give her a chance to introduce them,
as well. That was very kind of you.

Senator Cornyn. Judge Ramos applied for this position, was
screened by the Federal Judicial Evaluation Committee that Sen-
ator Hutchison and I have appointed, which is a bipartisan Com-
mittee comprised of the very lawyers in the State of Texas.

As Senator Hutchison said, we are pleased to recommend her to
President Obama and am even more pleased that she is a con-
sensus nominee.

I believe her character, temperament, and her skills demonstrate
that she will apply the law faithfully and why she has earned such
broad support.

Judge Ramos’ nomination, as I said, enjoys broad bipartisan sup-
port. The Texas House of Representatives, for instance, recently
passed a resolution describing her as, quote, “imminently qualified
to serve as a Federal judge.” That resolution passed unanimously
by both Republicans and Democrats.

During her time on the bench, Judge Ramos has displayed a
commitment to protecting some of our most vulnerable citizens. For
example, she helped create the Nueces County district domestic vi-
olence court, which she has served on for the past 3 years.

She has also been very active in her community, serving on the
Coastal Bend Council on Alcohol and Drug Abuse, on the board of
directors for the Corpus Christi chapter of the March of Dimes, and
as a mentor to students at Driscoll Middle School in Corpus Chris-
ti, Texas.

As a member of the court, Judge Ramos will be replacing Judge
Hayden Head. After a lifetime of service to his country and the
United States Navy during the Vietnam war and 30 years now on
the Federal bench, Judge Head will be a difficult act to follow. But

5

I am confident Judge Ramos will rise to the occasion and continue
to do us all proud.

I urge my colleagues to join Senator Hutchison and me and the
people of our State in support of the nomination of Judge Nelva
Gonazales Ramos.

Thank you, Mr. Chairman.

Senator Franken. Thank you, Senator Cornyn and Senator
Hutchison. I know you both have very busy schedules. So thank
you very much, and return to your other work.

Senator Hutchison. Thank you for your courtesy, Senator
Franken.

Senator Franken. You bet. It appears that Senator Durbin has
arrived. Would you introduce Ms. Darrow for us?

PRESENTATION OF SARA L. DARROW, NOMINEE TO BE U.S.

DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF ILLINOIS,

PRESENTED BY HON. RICHARD DURBIN, A U.S. SENATOR

FROM THE STATE OF ILLINOIS

Senator Durbin. Thank you very much, Mr. Chairman.

I am pleased to introduce Sara Darrow, who has been nominated
to serve in the District Court for the Central District of Illinois,
and I thank my colleague, Senator Kirk, for also joining in this
nomination.

I want to thank Chairman Leahy and Ranking Member Grassley
for including Ms. Darrow in today’s hearing and for giving me a
chance to say a few words about her nomination.

She is currently an Assistant United States Attorney for the Illi-
nois Central District, where she serves as the chief of the violent
crimes section and works out of the Rock Island office. She has
been nominated to fill the judgeship that was vacated when Judge
Joe Billy McDade took senior status last year in Peoria.

Ms. Darrow was recommended to me by a bipartisan merit selec-
tion committee I established to consider judicial applications, and
I was pleased to submit her name to the White House and I am
glad that she is here before us today.

I am also glad that she is joined by many members of her family,
including her husband, Clarence, and her six children. You will
have the chance to introduce your family when you make your
opening statement.

Ms. Darrow is a graduate of Marquette University and the St.
Louis University School of Law. While a college student at Mar-
quette, she interned in Washington, DC for our colleague, Senator
Carl Levin.

It was on Capitol Hill where she met and began dating her hus-
band, who was then working for Congressman Lane Evans.

Ms. Darrow began her legal career in private practice in Rock Is-
land, where she worked for 2 years before moving over to the
Henry County State’s attorney’s office. She served as assistant
state’s attorney there from 1999 to 2000, then as first assistant
state’s attorney from 2000 to 2003.

While serving at the state’s attorney’s office, she prosecuted a
wide range of state felony cases and tried to verdict approximately
20 jury cases and over 100 cases before the bench. In her capacity

6

as first assistant, she also was responsible for supervising staff at-
torneys and managing the office caseload.

In 2003, Ms. Darrow became a Federal prosecutor, serving in the
Rock Island office of the central district U.S. Attorney. She has in-
vestigated and prosecuted hundreds of defendants for various Fed-
eral crimes, including gang offenses, drug conspiracies, gun crimes,
bank robbery, money laundering and fraud. She has written and
argued numerous appeals.

Starting in 2007, Ms. Darrow has served as violent crimes chief
for the U.S. attorney’s office and as the office’s project safe neigh-
borhoods coordinator and organized crime drug enforcement tax
force coordinator.

I know Senator Grassley will be interested in the fact that Ms.
Darrow has also served since 2003 as a special assistant U.S. attor-
ney for the southern district of Iowa. This is an arrangement that
the Illinois and Iowa U.S. attorneys’ offices have worked out to co-
ordinate their effort.

She has an amazing, impressive record in the Rock Island com-
munity, having volunteered for numerous organizations that serve
children and the disadvantaged, and she also is a very proud moth-
er.

Ms. Darrow, we are glad to have you here before us today and
I look forward to enthusiastically supporting your nomination.

Senator Franken. Thank you very much, Senator Durbin.

And now I turn to my colleague from South Carolina, Senator
Graham.

PRESENTATION OF HENRY F. FLOYD, NOMINEE TO BE U.S.

CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, PRESENTED BY

HON. LINDSEY GRAHAM, A U.S. SENATOR FROM THE STATE

OF SOUTH CAROLINA

Senator Graham. Thank you, Mr. Chairman.

It is my pleasure today to introduce to the Committee Judge
Henry Floyd. I have known Henry for a very long time. We prac-
ticed law together in adjacent counties. He has been a state court
judge and a Federal judge for over 18 years. He was appointed to
the Federal bench by President Bush.

Representative Clyburn will be coming over from the House in a
bit to attest to the fact that Republicans and Democrats, independ-
ents, libertarians, vegetarians, we all have a common view of Judge
Floyd and we believe he has got the best temperament of anybody
in South Carolina. And that is saying a lot, because we have pretty
patient people down there.

He has a tremendous background of being a trial judge. He has
been a litigator. He served in the State House. He has got a terrific
background, I think, to administer justice at the Federal level. He
was rated well qualified by the ABA. And I am just proud to see
this day come. It has been a long time in the making, and I know,
Henry, you will do a great job for the Fourth Circuit and the people
of this part of the United States, and I look forward to getting you
confirmed.

And it is an odd situation where I am nominating someone and
putting holds on all the judges at the same time. Nothing personal
to these judges. We have got a problem in Charleston that I will

7

share with you later, and I am going to leave here to talk about
a situation with our port.

But I hope, Mr. Chairman and to my colleagues, that this will
end quickly. This is a huge deal for the State of South Carolina in
terms of our economic future. And all of these judges reflect the
best in America when it comes to the law, and Henry Floyd is a
judge’s judge, a person every lawyer who has been before has noth-
ing but praise. And I know you will administer justice fairly at the
Circuit Court level, and I very much appreciate President Obama
nominating you. This is something he did not have to do, but he
chose to do.

And when it comes to Representative Clyburn coming over from
the House, it speaks volumes about you, Henry, as a person. So
thank you very much.

Senator Franken. Thank you, Senator, and thanks for your pa-
tience, and I know you have to go. And we will hope that Rep-
resentative Clyburn does make it.

But in the meantime, we will go to Senators Udall and Bennet
to introduce Judge Jackson.

First, Senator Udall.

PRESENTATION OF RICHARD B. JACKSON, NOMINEE TO BE

U.S. DISTRICT JUDGE FOR THE DISTRICT OF COLORADO,

PRESENTED BY HON. MARK UDALL, A U.S. SENATOR FROM

THE STATE OF COLORADO

Senator Udall. Thank you, Mr. Chairman, Senator Grassley,
Senator Durbin. It is a treat to be here today to introduce a nomi-
nee for the Federal District Court bench in the District of Colorado,
Judge Brooke Jackson.

As you mentioned, I am joined here by my colleague, Senator
Bennet.

My firm belief is that Judge Jackson is exceptionally well quali-
fied to fill this judicial vacancy, and I would urge his confirmation.

The President, as was mentioned, nominated Judge Jackson to
fill a vacant seat on the Federal district court of Colorado, where
a judicial emergency, Senator Grassley pointed this out, has ex-
isted for several years due to a very heavy caseload.

Based on Judge Jackson’s track record of judicial service in Colo-
rado, I have no doubt that he will serve with distinction. Quite sim-
ply, he has the right judicial temperament, the depth of experience,
and a firm insistence on adjudicating all cases in an impartial
manner, consistent with the law, qualities that I know we all look
for in a Federal judge.

Judge Jackson is originally from Montana. He excelled academi-
cally and he graduated magma cum laude from Dartmouth College
and received his law degree cum laude from Harvard Law School.

When he graduated, he heard the siren call of the west, Mr.
Chairman, and he had the good sense and good fortune to turn his
western roots to practice law in Colorado.

He is currently a judge in the first judicial district of Colorado,
where he has served for nearly 13 years. He has served as the chief
judge for the last 8. During his time on the bench, Judge Jackson
has presided over hundreds of trials and sentenced nearly 5,000
criminal defendants.

8

Prior to his service on the bench, Judge Jackson spent 26 years
with the Denver-based law firm of Holland & Hart. During his
time in private practice, Judge Jackson juggled a very busy sched-
ule to also serve as a part-time pro bono town prosecutor on Bow
Mar, Colorado.

Mr. Chairman, Senator Bennet and I enlisted a bipartisan judi-
cial selection advisory panel to help us make recommendations to
the President for court vacancies in Colorado. Former Colorado Su-
preme Court Justice Rebecca Kourlis, a Republican, co-chaired the
advisory committee, with Hal Haddon, a prominent Denver lawyer
and Democrat.

When the process began, we had two vacancies on the district
court and our advisory panel worked tirelessly to interview and put
forward the most qualified candidates.

It was clear then and it is even clearer now that Judge Jackson
deserves the President’s nomination. I was not surprised when I
learned that the American Bar Association unanimously rated
Judge Jackson as well qualified, which is their highest rating, to
serve as a Federal district judge.

Since Judge Jackson has been nominated, there has been an out-
pouring of support from across the legal community and even
across party lines. He enjoys broad support from respected Repub-
licans, such as former U.S. Senate candidate Pete Coors, Colorado
Attorney General John Suthers, Scott Storey, the district attorney
of his own judicial district, and many others. He also has the sup-
port of many members of my party, including former Governor Bill
Ritter, current U.S. Attorney John Walsh, and Congressman Ed
Perlmutter of the seventh district, where Judge Jackson serves.

Mr. Chairman, even district attorneys, police chiefs, sheriffs from
across his district have come out in support of his nomination, and,
Mr. Chairman, I would like to submit all the letters we have re-
ceived thus far for the record.

Senator Franken. Absolutely, without objection.

[The letters appear as a submission for the record.]

Senator Udall. It is over 40 letters of the people I mentioned
and many others.

The nomination of Judge Jackson is one of those rare, at least
I think very notable times when Democrats and Republicans are all
speaking with one voice in support of Judge Jackson.

I want to thank you, Mr. Chairman, and members of the Com-
mittee for affording me time this afternoon to introduce Judge
Jackson to all of you.

Thank you.

Senator Franken. Thank you, Senator Udall.

And I will go to my colleague, Senator Bennet.

PRESENTATION OF RICHARD B. JACKSON, NOMINEE TO BE

U.S. DISTRICT JUDGE FOR THE DISTRICT OF COLORADO,

PRESENTED BY HON. MICHAEL F. BENNET, A U.S. SENATOR

FROM THE STATE OF COLORADO

Senator Bennet. Thank you, Mr. Chairman. By the way, it takes
longer in some of our other committees to get to where you are. So
congratulations.

Senator Franken. Well deserved.

9

[Laughter.]

Senator Bennet. That is what I believe. You certainly look the
part.

And Senator Udall is right, we speak with one voice today. Sen-
ator Durbin looks a little unsure.

[Laughter.]

Senator Bennet. I want to thank you and the members of the
Committee for holding this hearing on Judge Brooke Jackson to
serve on our United States District Court for the District of Colo-
rado.

I would also like to welcome the Jackson family here today.

I am proud to be here today with Mark Udall to introduce Judge
Jackson. His nomination, as Senator Udall said, is the product of
a thorough review by a bipartisan judicial nomination commission
in our state.

I support Judge Jackson’s nomination and the work of our con-
firmation and urge confirmation of this impressively experienced
candidate to the Federal bench.

Judge Jackson is a seasoned jurist. He has extensive knowledge
of a wide variety of types of cases important to the people of the
State of Colorado. His mean years overseeing thousands of cases in
Colorado’s courts have prepared him now to serve our Nation on
the Federal bench.

Since his appointment to the state district court bench in 1998,
he has dutifully served Colorado. Because of his judicial tempera-
ment and skill on the bench, Judge Jackson was elevated to chief
judge of the first judicial district in 2003.

As chief judge, he is not only responsible for managing the entire
judicial team made up of 13 district court judges, eight county
court judges, eight magistrates, and a staff of 300, Judge Jackson
manages a caseload of 200 felonies, 200 civil cases, and 50 domestic
cases.

He has had some of the toughest cases come before him and, by
all accounts, from Republicans, such as our current Colorado Attor-
ney General, John Suthers, to Democrats, like our former Gov-
ernor, Bill Ritter, Judge Jackson has broad support.

I know Senator Udall plans to ask the committee, or he already
did, to add a number of letters of support from prominent law en-
forcement officials and others in our state. These letters run the
gamut, I assure you, Mr. Chairman, across Colorado’s legal and
law enforcement community.

Prior to his appointment to the state bench, Judge Jackson
worked in private practice for 26 years as a civil litigator. He has
also served as a prosecutor. His breadth of public and private sec-
tor legal experience sets him apart. That is why Senator Udall ob-
served the American Bar Association rates him unanimously well
qualified. It is also why the leaders in our state, from Pete Coors
to John Walsh, have joined in support of Judge Jackson’s nomina-
tion.

Given the case backlogs in our judicial system, it is especially im-
portant that we bring on someone with Judge Jackson’s breadth of
experience to help make sure all Coloradans have access to our
courts. The Federal court system needs to fill this vacancy as soon
as practicable.

10

I am more than happy to provide the Committee with any fur-
ther materials or insight you may need as you process Judge Jack-
son’s nomination.

I would like to thank, again, the Committee for holding this
hearing today and join the array of Colorado voices urging Judge
Jackson’s confirmation.

Thank you, Mr. Chairman, and I thank my other colleagues here
for their forbearance.

Senator Franken. Thank you, gentlemen.

Before we turn to the distinguished Senator from Massachusetts,
without objection, I will add to the record an enthusiastic state-
ment of support from his colleague, Senator Kerry, for the nomina-
tion of Lisa Monaco.

And he writes the following: “From her time as a Federal crimi-
nal prosecutor, where she took on Enron, to her work in the FBI
director’s office and the difficult and decisive days following the
9/11 attacks, Lisa has doggedly pursued justice and dedicated her-
self to strengthening the safety and security of our Nation. I am
confident that Lisa will do a superb job in protecting our country.”

And without objection, I will include the entire letter in the
record.

[The prepared statement of Senator Kerry appears as a submis-
sion for the record.]

Senator Franken. We turn now to my distinguished colleague
from Massachusetts, Senator Brown, to introduce Ms. Monaco.

PRESENTATION OF LISA O. MONACO, NOMINEE TO BE ASSIST-
ANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION,

U.S. DEPARTMENT OF JUSTICE BY HON. SCOTT P. BROWN, A

U.S. SENATOR FROM THE STATE OF MASSACHUSETTS

Senator Brown of Massachusetts. Thank you, Mr. Chairman and
Ranking Member and members of the committee. I just want to say
thank you for allowing me to speak and, obviously, to appear here
today to introduce Lisa Monaco, a nominee to be Assistant Attor-
ney General for the National Security Division. And I offer my con-
gratulations, as I have to her and her family.

She has been a dedicated public servant for many years, and it
is my honor to introduce her at this hearing.

I had the pleasure of speaking with Ms. Monaco yesterday in my
office at length and very much enjoyed our conversation, and I
found that she conveyed strong self-confidence and a seriousness of
purpose.

She has deep roots in Massachusetts, having been born in Mas-
sachusetts and raised in Newton, and attended Newton public
schools before enrolling at Harvard. Her parents still live in New-
ton. Her twin brother and his family live in Belmont. Her eldest
brother lives in Boston. And I’m sure — I know that the family is
very proud of her today.

When I met with her yesterday, we had a frank conversation
about the important role that the National Security Division plays
in keeping our Nation safe and secure, and I believe she under-
stands the incredible importance of the office for which she is being
nominated.

11

Former Attorney General Michael Mukasey wrote to this Com-
mittee about her experience and stated that, “has both sound judg-
ment and a keen understanding national security law”.

I am pleased to learn that her background reflects an under-
standing of the national security threats that we face, as well as
the operation of the Justice Department.

Currently, she is the principal associate deputy attorney general
and is a member of the senior management team for the deputy at-
torney general and the attorney general.

She serves as the deputy attorney general’s primary advisor on
a broad range of criminal, law enforcement, national security, and
civil matters, and assists the deputy attorney general in the overall
management and oversight of the operations of the Justice Depart-
ment.

From 2006 to 2008, she served as chief of staff to the director of
the FBI and she is a former prosecutor who served, as you noted,
Mr. Chairman — as Senator Kerry noted — on the Enron task force.

She was among a small group of prosecutors drawn from around
the country and charged with investigating criminal violations in
connection with the collapse of Enron in 2001.

She received the attorney general’s award for exceptional service,
the Department of Justice’s highest award, for her work as a pros-
ecutor on that task force.

In closing, I look forward to a thorough and fair examination of
her record. The critical work of the National Security Division de-
mands no less.

So thank you, Mr. Chairman and Ranking Member and Senator
Durbin.

Senator Franken. Thank you, Senator Brown. Thanks for your
patience and arriving so early.

We would like to welcome, from the House of Representatives, to
speak on behalf of Judge Floyd and speak to the bipartisan support
for Judge Floyd, our colleague, Representative Clyburn. Thank you
for joining us.

PRESENTATION OF HENRY F. FLOYD, NOMINEE TO BE U.S.

CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, PRSENTED BY

HON. JAMES E. CLYBURN, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF SOUTH CAROLINA

Representative Clyburn. Thank you very much, Mr. Chairman.
Mr. Chairman, Senator Grassley, Senator Durbin, I want to thank
you all so much for allowing me to appear here today on behalf of
a long-time friend, Judge Floyd.

I was thinking, as I was searching this junk on my desk trying
to find the remarks that were prepared for me today, what will I
say without them. Well, I am without them. So I am going to tell
you what I know about Judge Floyd.

I first met Judge Floyd when I was running a state agency in
South Carolina, an agency to which I was appointed by then Gov-
ernor John West, an agency that was created to respond to the
times within which we lived coming out of the 1960s and the early
1970s.

As you might imagine, Mr. Chairman, in those days, things were
quite contentious in South Carolina and in the early days of that

12

agency, I was not the first director of it, it got in significant dif-
ficulty and the legislature was moving to defund the agency and
eliminate it. And I was asked by Governor West to go to that agen-
cy and try to see what we could do to turn it around.

I started looking for legislators that I could sit down with and
could get to understand exactly what it was that we were trying
to do in order to continue to move our state forward.

In that search, I came upon Henry Floyd, a young legislator from
Pickens County, and when I looked into his background, I was
able, through those meetings, to forgive him because of his north-
ern roots, having been born in North Carolina. His parents moved
to Pickens County when he was a very young boy.

He, I noticed, had graduated from Wofford College in
Spartanburg, a United Methodist affiliated school, whose board of
trustees I was one time a member of.

I know that we all talk about judges being prepared, well pre-
pared for their work, and I think that all of you have his back-
ground before you and I need not go into that.

What may not be shown on that paper that you have is the tem-
perament of Henry Floyd. I can tell you without question that no
one has ever been considered for a judgeship, no one has ever
served in a judgeship that has demonstrated the kind of judicial
temperament that you will find in Judge Henry Floyd. And I am
so pleased to be here today to be a part of hopefully elevating him
to the Fourth Circuit Court of Appeals.

I do believe that he would make not just all South Carolinians,
but all Americans proud.

So thank you so much for allowing me to be here on his behalf
today, and I wish him Godspeed, and each one of you the same
throughout your deliberations.

Thank you so much.

Senator Franken. Thank you, Representative Clyburn, for join-
ing us here in the Senate.

And with that, I will introduce Judge Floyd and swear him in.
So if, Judge Floyd, you would come forward, after that very elo-
quent introduction. You can remain standing.

[Nominee sworn.]

Senator Franken. Thank you. You may be seated.

Judge Floyd, as is our tradition, please feel free to introduce any
members of your family or friends that are here with you today.

STATEMENT OF HON. HENRY F. FLOYD, NOMINEE TO BE
UNITED STATES CIRCUIT JUDGE FOR THE FOURTH CIRCUIT

Judge Floyd. Thank you, Mr. Chairman.

I have with me my wife, Dr. Libba Floyd; my good friend, Scott
Dover; my mother, Margaret Floyd; my daughter, Betts
Copenhaver, who is the mother of our two grandchildren; and,
then, the president-elect of the South Carolina Bar, Marvin
Quattlebaum, appeared here today. I didn’t know he was coming,
but he’s in the audience today, as well.

Senator Franken. Welcome to all of you and congratulations to
all of you.

Judge Floyd, you are in the unique position of having served as
both a judge and as an elected official in the South Carolina State

13

Legislature, a special position — I am sure someone else has done
that before.

Should you be confirmed, how do you think that your time serv-
ing in the legislature will help you interpret the laws that we
write?

Judge Floyd. Thank you, Mr. Chairman, for that question, and
Senator Grassley.

I was elected to the legislature when I was in law school. And
so I got to spend a lot of time working with the Judiciary Com-
mittee, which, at that time, drafted most of the legislation that was
considered by the House, except for budget.

And so I got a real good lesson in how to put statutes together,
how to interpret them, what the pitfalls could be. So I think my
legislative experience would greatly assist me in the area of statu-
tory construction and interpretation.

Senator Franken. You currently are a district court judge. How
do you think your job will change if you are confirmed for a posi-
tion in the court of appeals?

Judge Floyd. Well, I think — Senator, thank you for that ques-
tion. I think that we still do a lot of writing and research at the
district court level, particularly on the civil side. So it’s nothing
new to me in that regard.

I would tell you that I’ve also set a designation at the Courth
Circuit some 50 to 60 times. So I’m familiar with the process and
how it works, and I think the transition would be very easy for me.

Senator Franken. You were at the center of some very important
national security cases a few years ago; for instance, the Padilla
and Almawri cases. Can you ell us about those cases and your role
in them?

Judge Floyd. Thank you, Senator. The Padilla case came to me
by way of a Supreme Court opinion that said that the case had to
be tried in the district of South Carolina. And so he was in-house
at the brig in South Carolina.

So I got the case and the issue was whether or not the President
had the right to detain an American citizen who was arrested on
American soil. I ruled that he did not have that authority. And
then the Fourth Circuit unanimously reversed me on that case.

And then a few days before the cert briefs were due in the Su-
preme Court, the government changed its mind and decided to
charge Jose Padilla as a citizen and they tried him in Florida.

The Almawri case is a little different set of facts. He likewise
was in the brig at Charleston. He came into the country the night
before 9/11. The evidence in the case led me to conclude that under
those facts and circumstances, that the President had a right to de-
tain Almawri because there was a sudden — there was somewhat of
a sudden emergency had he gone on about what he had plotted to
do.

That went up on appeal and, again, I got reversed by the Fourth
Circuit. Again, just days before the Supreme Court was to see the
briefs on the court, again, the government changed its mind and
charged him as a citizen and — civilian — and tried him, I think, in
Illinois, Senator Durbin.

14

The order in that case, my order, is still a valid order in that the
Supreme Court has vacated the Fourth Circuit’s opinion. So the
right of detention is still there.

Senator Franken. So the Supreme Court never ruled on the
issues in that case then.

Judge Floyd. They never got to it, initially on jurisdictional
grounds.

Senator Franken. I understand that you were one of the first
judges in the country to address the admissibility of — and I hope
I pronounce this right — mitochondrial?

Judge Floyd. Mitochondrial DNA, Senator?

Senator Franken. Yes.

Judge Floyd. Yes, sir.

Senator Franken. Yes. DNA is the pronunciation I knew I could
get right. And you ruled that such evidence was admissible, which
the South Carolina Supreme Court affirmed. I have worked hard
here in the Senate to make sure that DNA evidence is collected
and tested in a timely way so that justice can be served for victims
of crime.

Can you tell me a little bit about your experiences with DNA evi-
dence in your courtroom?

Judge Floyd. Thank you, Senator, for that question. Specifically
on mitochondrial or DNA in general? In general?

Senator Franken. In general.

Judge Floyd. All right. Well mitochondrial DNA is derived from
the mother of the person. It can be a very, very, very small sample.

In this case, it was a murder case, with the death penalty pend-
ing. The FBI came in and testified. It was only the second time in
the United States that mitochondrial DNA evidence was admitted,
and we went through a long process, something akin to the
Daubert analysis in Federal court. But ultimately, it was admitted.

DNA evidence is quite frequently used, particularly in the state
court, because there are so many criminal cases tried there. I have
had — I have not had a bad experience with it and we’ve been — and
we’ve had a good chain of custody and all that kind of stuff. So it’s
a very valuable tool for both sides.

Senator Franken. Thank you, Judge.

And I would turn to the Ranking Member.

Senator Grassley. I do not know whether I need to ask you any
questions. If you have got the two Senators from South Carolina
on your side, you have got a couple tough cookies backing you.

But let me do my job, because we want to make sure that people
that interpret the law as opposed to make the law get on our
courts.

And I was going to ask you about Padilla, so I will not go into
that anymore. But you were a state court judge for 11 years, hav-
ing been a District Court Judge now for 7 years, presided over hun-
dreds of cases and even sat as designation on the Fourth Circuit.

I am going to use, for my first question, Professor Liu, who was
before our Committee a couple — well, maybe a month ago now for
a hearing, and his nomination is on the Senate floor.

But as a professor, he wrote at the moment of decision should de-
termine whether a society’s, “collective values on a given issue,”

15

have converged to a degree that they could be persuasively crys-
tallized and absorbed into legal doctrine.

What I am asking is for you to answer, is it appropriate for a
judge to consider, “our collective values on a given issue,” when in-
terpreting the Constitution, a Federal statute, or deciding case or
controversy?

Judge Floyd. Thank you for the question, Senator Grassley. I
am not familiar with the nominee or any of his writings, and I real-
ly don’t know what content that particular quotation came from. So
I’m really not in a position to evaluate that.

Senator Grassley. All right. If confirmed as a Circuit Judge,
what weight would you give to public values and social under-
standings in deciding cases, analyzing Federal statutes, or inter-
preting the Constitution?

Judge Floyd. Thank you, sir, for that question.

My position has always been, as a trial judge, both at the state
and Federal level, is that, as simple as it sounds, I try to determine
what the facts are and do that fairly and impartially and to those
facts, I apply the law, as I understand it to be.

There is a lot of precedent out there and I understand that and
do follow precedent, when it exists. So that may seem a little nar-
row, but that’s the way that I do things.

Senator Grassley. Do you think the Constitution should be in-
terpreted in ways that adapt its principles and its text to the chal-
lenges and conditions of our society? And if you thought so, how
would you go about accomplishing that?

Judge Floyd. Thank you again for that question. I don’t believe
that I would go about interpreting in that way, but I understand
your question.

Senator Grassley. I think you have answered my question. I
would like you to think about the most difficult case you have had
to decide as a Federal judge. In deciding that case, did you resort
to things that you might call your own personal values, your core
concerns, broader perspectives of how the world might work or the
depth and breadth of your empathy? And those are words that
might sound familiar to you, because they come from the empathy
standard discussed by President Obama on several occasions.

Judge Floyd. So you want me to talk about the concept of empa-
thy.

Senator Grassley. Well, how you would use that, whether you
look at cases that way.

Judge Floyd. No. Again, the way I answered your other ques-
tion, you look at the facts, you determine them fairly and impar-
tially, and you apply the law, and that’s essentially what I do.

Senator Grassley. Thank you very much.

Senator Franken. Senator Durbin.

Senator Durbin. Thank you very much, Judge Floyd, for being
here. And like my colleagues, I am impressed by the fact that you
had the support of both Republican Senators and my close friend,
Congressman Clyburn, speaks well of your background and balance
and reputation as a jurist.

You have been involved in a number of things which have been
questioned here. There is one I would like to ask about. We had
a former colleague from the Commonwealth of Pennsylvania, Arlen

16

Specter, and his last request of us as he left this Judiciary Com-
mittee, which he once chaired, was that we take up that issue
which he addressed with great passion of televising court pro-
ceedings.

And it turns out that in your background, you were a state court
judge and presided over the case of State v. Beckham, a prominent
murder case that resulted in a life sentence for the defendant. The
entire 3-week trial was televised live in Court TV.

So, Judge Floyd, what is your view on televising court pro-
ceedings and whether they would be appropriate in Federal court?

Judge Floyd. Well, let me answer this way, from the state court
experience. The Supreme Court gave us discretion to have pro-
ceedings televised. I personally, as a state court judge, did not have
any problems with Court TV, for example, being in the courtroom.

Everything went smoothly. And as you’ve noted, it was a 3-week
trial. It wasn’t the only trial where I had TV or cameras in. But
it didn’t bother me in state court.

But to answer your question, at the Federal level, that’s really
not my call. I think that’s up to the Supreme Court or perhaps
Congress.

Senator Durbin. What was your observation on its impact on
witnesses or even the conduct of counsel?

Judge Floyd. Senator, with me personally, I run a pretty tight
courtroom and I have not had problems. But I am aware that other
judges have had problems with counsel playing for the cameras.

Lots of times, the public can be misled by a snippet on the news
and get the wrong idea about what’s going on in the case. So that’s
one of the pitfalls of having cameras in the courtroom. But, again,
I had a good experience. I never got burned by it.

Senator Durbin. Thanks very much, Judge Floyd.

Thank you, Mr. Chairman.

Senator Franken. Thank you. And thank you, Judge Floyd.
Thank you for your testimony.

[The biographical information of Henry F. Floyd follows.]

17

UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY

QUESTIONNAIRE FOR JUDICIAL NOMINEES

PUBLIC

1 . Name : Slate full name (include any former names used).

Henry Franklin Floyd

2. Position : Stale the position for which you have been nominated.

United States Circuit Judge for the Fourth Circuit

3- Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.

United States District Court
Donald S. Russell Federal Building
201 Magnolia Street
Spartanburg, South Carolina 29306

4. Birthplace : State year and place of birth.

1947; Brevard, North Carolina

5. Education : List in reverse chronological order each college, law school, or any other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.

1970- 1973, University of South Carolina School of Law; J.D., 1973
1966 - 1970, Wofford College; B.A., 1970

6. Employment Record : List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation
from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.

2003 - Present

United States District Court for the District of South Carolina
20 1 Magnolia Street
Spartanburg, South Carolina 29306
United States District Judge

18

1992-2003

South Carolina Court Administration
1015 Sumter Street
Columbia, South Carolina 29201
South Carolina Circuit Court Judge

1986- 1992
Pickens County
222 McDaniel Avenue
Pickens, South Carolina 29671

County Attorney (simultaneously with my partnership at the law firm)
1978-1992

Acker, Acker, Floyd & Welmaker, P.A.

Attorneys at Law
603 South Lewis Street
Pickens, South Carolina 29671
Partner

1972-1978

South Carolina House of Representatives
State House

Columbia, South Carolina 2921 1
Member, House of Representatives

1974-1977

Floyd & Welmaker, P.A.

Attorneys at Law
208 Garvin Street
Pickens, South Carolina 29671
Partner

1973 - 1974

Henry F. Floyd

Attorney at Law

208 Garvin Street

Pickens, South Carolina 29671

Solo Practitioner

1973

United States Army
Fort Benjamin Harrison
Indianapolis, Indiana
First Lieutenant

2

19

1970- 1971

Lt, Governor Earle E. Morris
P.O. Box 142

Columbia, South Carolina 29202
Administrative Assistant

Other Affiliations (uncompensated!

1994 - Present

South Carolina Judicial Invitational Golf Tournament
P.O.Box 136

Columbia, South Carolina 29202
President (1995 - 2006)

Chairman of the Board (2007 - present)

2004-2007

Grace United Methodist Church
309 East Cedar Rock
Pickens, South Carolina 29671
Administrative Board Member

1989-1992

Rocky Bottom Camp for the Blind
123 Hancock Road
Sunset, South Carolina 29685
Board Member

1980- 1992

Pickens County Public Defender Corporation
c/oP. O. Box 10264
Greenville, South Carolina 29603
Board Member

1978- 1990

South Carolina Forestry Commission
5500 Broad River Road
Columbia, South Carolina 29212
Commissioner

7. Military Service and Draft Status : Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.

In September 1966, 1 joined the Reserve Officers Training Corps at Wofford College. I
was commissioned Second Lieutenant in the United States Army in May 1 970. I was in

3

20

reserve status from 1970 to 1 973, except for a three month period during which I was in
active service at Fort Benjamin Harrison in Indianapolis, Indiana (August 1973 -
November 1973). I went on inactive reserve status between November 1973 and July
1 979, when I received an honorable discharge. My highest rank was First Lieutenant. In
addition, 1 registered for selective service.

8. Honors and Awards : List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.

Eagle Scout - Boy Scouts of America (1962)

Member, Blue Key National Honor Society (1969)

Scabbard & Blade National Military Honor Society ( 1 969)

Who’s Who in American Colleges & Universities (1969)

9, Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.

American Bar Association

State Trial Judges Conference
American Judicature Society

Board of Commissioners on Grievances and Discipline, 1990 - 1 992

Federal Bar Association

Federal Judges Association

Fourth Circuit Judicial Conference

Greenville County Bar Association

Judicial Resources Committee for the Judicial Conference of the United States
Pickens County Bar Association

South Carolina Advisory Committee for Drug Offenses & Common Law Crimes
South Carolina Advisory Committee on Standards of Judicial Conduct, 1993 - 1999
South Carolina Association of Circuit Judges
President, 1995 - 1997
South Carolina Bar Association

South Carolina Bar Association Pro Bono Program, 1991-1 992
South Carolina Circuit Judges Advisory Committee
South Carolina Commission on Judicial Conduct, 1999 - 2000
South Carolina Judicial Conference

South Carolina Trial Lawyers Association (now known as South Carolina Association for
Justice)

Spartanburg County Bar Association
Upstate South Carolina American Inn of Court

4

21

JO. Bar and Court Admission :

a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.

South Carolina, 1973

There have been no lapses in membership.

b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
in membership. Give the same information for administrative bodies that require
special admission to practice.

Supreme Court of the United States, 1980
United States Court of Appeals for the Fourth Circuit, 1 974
United States District Court for the District of South Carolina, 1 974
South Carolina Supreme Court, 1973

There have been no lapses in membership.

11. Memberships :

a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 10 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership or participation, and indicate any office you held
Include clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.

The Arbours at Reba-Dale Homeowners Association (2010 - present)

The Commerce Club (1984 - present)

First National Bank of Pickens County Advisory Board (1984 - 1992)

Grace United Methodist Church Administrative Board (2004 - 2007)

Pi Kappa Alpha Fraternity, Alumnus member
Pickens Country Club (1 973 - 2008)

Pickens County Public Defender Corporation (1980— 1982)

Board Member

Pickens Investment Club (1978 — 1992)

Pumpkintown Associates Investment Group (1982 - 1992)

Rocky Bottom Camp for the Blind (1989 - 1992)

Board Member

South Carolina Forestry Commission (1978 - 1990)

Commissioner

5

22

South Carolina Judicial Invitational Golf Tournament (1 994 - present)

President (1995 -2006)

Chairman of the Board (2007 — present)

b. The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion, or national
origin. Indicate whether any of these organizations listed in response to 1 la above
currently discriminate or formerly discriminated on the basis of race, sex, religion
or national origin either through formal membership requirements or the practical
implementation of membership policies. If so, describe any action you have taken
to change these policies and practices.

I am an alumnus member of the Pi Kappa Alpha social fraternity at Wofford
College, which is for men only.

To the best of my knowledge, no other organization listed above currently
discriminates, or previously discriminated, on the basis of race, sex, religion, or
national origin.

12. Published Writings and Public Statements :

a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Supply four (4) copies of all published
material to the Committee.

This list represents the published material I have identified through searches of
my files and Internet databases. I have tried my best to list all of them here,
although there may be some that I have not been able to identify or locate.

The Law of Automobile Insurance in South Carolina - Sixth Edition, South
Carolina Bar (2009), editorial board. Copy supplied.

The South Carolina Law of Torts - Third Edition, South Carolina Bar (2004),
contributed substantially to Chapter 8, Damages: Judicial Supervision of the
Amount of Verdicts. Copy supplied.

The Criminal Trial Benchbook for New Circuit Judges, South Carolina Court
Administration, 2000. Copy supplied.

The Pickens Sentinel, Legislative Report, at varying intervals from 1973 — 1 976.
During my tenure in the House of Representatives, 1 published status reports to
my constituents regarding legislative happenings. Copy supplied.

6

23

Letter to the Editor, Old Gold & Black, Nov. 8, 1968, at 2. The Old Gold &
Black is the college newspaper for Wofford College. Copy supplied.

b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, give the
name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.

Between October 1993 and November 1999, as a board member for the South
Carolina Supreme Court Advisory Committee on Standards of Judicial Conduct, I
contributed to opinions released in response to conduct questions from other
judges. I have supplied all opinions to which I contributed.

Between 1973 and 1978, as a state representative, I sponsored and co-sponsored
legislation. A copy of the list of legislation 1 have been able to obtain is supplied.

During my time at Wofford College, I was a member of the Blue Key National
Honor Society and served as the SGA Treasurer. In that capacity, I participated in
preparing a report that called for the creation of a Campus Union. I do not have a
copy of the report. Articles about the report and my involvement, however, can
be found in the March 6, 1970, and April 10, 1970, issues of the Wofford College
newspaper, the Old Gold & Black. Copies of those articles are supplied. Wofford
College’s address is 429 North Church Street, Spartanburg, South Carolina
29303.

In addition, between 1 978 and 1 990, during my service as a Commissioner on the
South Carolina Forestry Commission, the Commission published an Annual
Report. I do not recall personally preparing or contributing to these reports.

I cannot recall and have been unable to identify any other reports, memoranda, or
policy statements that 1 prepared or contributed in preparing.

c. Supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.

On July 30, 2003, 1 testified before the United States Senate Judiciary Committee
prior to my confirmation as a United States District Judge. I was asked one
question relating to my work on the Board of Commissioners on Grievances and
Discipline and how it helped me as a judge. Copy supplied.

7

24

In September 2000, 1 wrote a letter to the County Council about courthouse
security. While I have been unable to obtain a copy of the letter, press coverage
with details of my letter is supplied,

In 1998, 1 testified before the Judicial Merit Selection Commission, chaired by
Representative F. Gregory Delleney, Jr., prior to my reelection as a state circuit
court judge. My testimony included answering questions regarding the law on
various ethical issues, various matters of protocol in my chambers, my views on
judicial activism and judicial temperament, and my involvement in the legal
community. Copy supplied.

In 1992, 1 testified before the South Carolina General Assembly’s Judicial
Screening Committee, chaired by Thomas Pope III, prior to my election as a state
circuit court judge. My testimony included answering questions relating to my
transition from being a trial lawyer to a judge, the ideal qualities of a circuit court
judge, and my prior practice. Copy supplied.

In 1 975, 1 participated with three other state legislators in a public debate
regarding the enabling statute for home rule in South Carolina. I advocated for
the enactment of county home rule with minimal interference from the state
legislature. The debate was broadcast on South Carolina’s PBS station, ETV. I
have no notes, transcripts or recordings of this debate and have been unable to
find any other record of the event.

d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by you, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk. If you do not have a copy of the speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.
If you did not speak from a prepared text, furnish a copy of any outline or notes
from which you spoke.

The list below identifies speeches or talks I have identified from my files, a search
of Internet databases and my personal recollection. Despite my searches, there
may be other speeches or talks I have been unable to identify, locate, or recall.

March 9, 2010: South Carolina Bar Association’s Bridge the Gap course for
recent bar members. University of South Carolina School of Law. I participated
on a panel discussing tips for succeeding in federal court. I have no notes,
transcript or recording. The address of the Bar Association is 950 Taylor Street,
Columbia, South Carolina 29201.

November 7, 2009: South Carolina Defense Trial Attorneys’ Association Annual
Meeting, Savannah, Georgia. I participated on a pane! of federal judges

8

25

discussing federal practice and procedure. 1 have no notes, transcript or
recording. The address of the Association is 1 Windsor Cove, Suite 305,
Columbia, South Carolina 29223.

September 17, 2009: South Carolina Federal Bar Association CLE, Greenville,
South Carolina. 1 participated on a panel discussing ethics in the legal practice. I
have no notes, transcript or recording. The address of the Association is P.O. Box
1402, Columbia, South Carolina 29202.

May 16, 2009: South Carolina Court Reporters Association Convention,
Greenville, South Carolina. I spoke about rules for living and some of the
differences in federal and state courts in South Carolina. I have no notes,
transcript or recording. The address of the Association is 721 Cypress Point
Drive, Chappells, South Carolina 29037.

November 13-16, 2008: South Carolina Defense Trial Attorneys’ Association
Annual Meeting, Amelia Island, Florida. I spoke on a panel to give my
perspective on serving as a federal judge and to discuss how judges can avoid
making legal mistakes. I also served on a panel CLE program on lawyer civility.

I have no notes, transcript or recording. Press coverage supplied. The address of
the Association is 1 Windsor Cove, Suite 305, Columbia, South Carolina 29223.

June 24, 2008: Investiture for Circuit Public Defender of the Seventh Circuit,
Spartanburg, South Carolina. I gave remarks at the ceremony for Clay Allen as
he was sworn in as the new Public Defender. A copy of my notes is supplied.

September 26, 2007 and November 9, 2007: Wofford College Judicial Forum and
University of South Carolina School of Law class reunion. Terrorism and Civil
Liberties was the broad topic of this talk. A copy of my notes is supplied.

February 28, 2007: Charleston School of Law, Charleston, South Carolina. I gave
a talk as a part of the school’s Professionalism Series. A copy of my notes is
supplied.

November 10, 2006: South Carolina Defense Trial Attorneys’ Association annual
meeting, Amelia Island, Florida. I participated on a panel of judges entitled
“Upcoming changes to Electronic Discovery - Tips from the Federal Judiciary.”

I have no notes, transcript or recording. The address of the Association is 1
Windsor Cove, Suite 305, Columbia, South Carolina 29223.

October 27, 2006: South Carolina Bar CLE, Columbia, South Carolina. Annual
Tort Law Seminar. I presented remarks with regard to additur and remittitur in
the federal courts. Remarks supplied.

January 28, 2006: South Carolina Bar Convention, Charleston, South Carolina. I
participated on a panel dealing with the topic of Tort Reform in South Carolina.

9

26

I have no notes, transcript or recording. The address of the Bar Association is 950
Taylor Street, Columbia, South Carolina 29201.

November 1 1 , 2005: South Carolina Bar CLE, Columbia, South Carolina
Masters in Trial. Participated on a panel discussion about good trial techniques.

I have no notes, transcript or recording. The address of the Bar Association is 950
Taylor Street, Columbia, South Carolina 29201 .

October 28, 2005: U.S. Probation Office for the District of South Carolina,
Greenville, South Carolina. Annual seminar about U.S. Sentencing Guidelines. I
have no notes, transcript or recording. The address for the Probation Office is 61 7
East McBee Avenue, Greenville, South Carolina 29601.

September 9, 2005: Fourth Annual Federal Bar Association CLE, Columbia,

South Carolina. I participated on a panel about developments in the federal
practice in South Carolina. I have no notes, transcript or recording. The address
of the Bar Association is 1220 North Fillmore Street, Suite 444, Arlington,
Virginia 22201.

June 27, 2005: Fourth Circuit Judicial Conference, Hot Springs, Virginia. I gave
a brief talk about my journey to becoming a United States District Judge. A copy
of my notes is supplied.

April 29, 2005: Spartanburg County Bar Association Law Day event. I discussed
the Seventh Amendment right to trial by a jury. Remarks supplied.

April 8, 2005: Emory University School of Law. I spoke to a “Law and
Terrorism” class and took questions. My remarks were limited to my decisions in
Padilla and Al-Marri. I have no notes, transcript or recording. The address of the
law school is Gambrell Hall, 1301 Clifton Road, Atlanta, Georgia 30322.

February 2005: South Carolina Bar CLE Division. 1 recorded a video course on
the differences in state and federal courts in South Carolina. My notes and the
video recording are supplied.

September 24, 2004: Wofford and the Law , conference held at Wofford College,
Spartanburg, South Carolina. 1 participated on a panel discussion of a variety of
topics, including punitive damages in South Carolina federal courts after State
Farm v. Campbell. A copy of my outline is supplied.

May 6, 2004: South Carolina Circuit Judges Annual Conference, Columbia, South
Carolina. I gave a talk on the basics of class actions. My outline notes are
supplied.

March 26, 2004: South Carolina Bar Vacation CLE, Pinehurst, North Carolina.
Ethics - The Oath is Sacred. My outline is supplied.

10

27

March 9, 2004 and May 18, 2004: South Carolina Bar Association's Bridge the
Gap course for new bar members. I participated in a panel discussion on federal
practice in South Carolina at the University of South Carolina School of Law,
Columbia, South Carolina. I have no notes, transcript or recording. The address
of the Bar Association is 950 Taylor Street, Columbia, South Carolina 29201.

February 27, 2004: South Carolina Circuit Judge G. Edward Weimaker
Investiture ceremony, Pickens, South Carolina. I delivered remarks at the
ceremony. A copy of my remarks is supplied,

January 26, 2004: South Carolina Bar Convention, Charleston, South Carolina,
Breakfast Ethics - The Oath is Sacred. A United States Magistrate Judge and I
discussed the topic. The outline I used was the same as that supplied for the
March 26, 2004 event.

December 1 , 2003: my investiture ceremony as a United States District Judge,
given at the Donald Russell Federal Building, Spartanburg, South Carolina. A
copy of the transcript is supplied.

May 1, 2003: Law Day Speech, Greenville County Bar Law Day Luncheon. I
discussed the history of Law Day in the United States. A copy of my notes is
supplied.

September 30, 2002: Differentiated Case Management System, South Carolina
Court Administration, South Carolina Solicitors’ Conference and Public
Defenders’ Conference, Myrtle Beach, South Carolina, showing results of the
Richland County Pilot Project. My notes are supplied. Also supplied is a copy of
the article from The State entitled, “Project Slashes Backlog of Richland Court
Cases.”

January 25, 2002: South Carolina Bar Convention, Charleston, South Carolina,
17th Annual Criminal Law Update. I participated in a panel discussion regarding
recent decisions affecting criminal law in South Carolina. 1 have no notes,
transcript or recording. The address of the Bar Association is 950 Taylor Street,
Columbia, South Carolina 29201.

1 996 - 2002, South Carolina Circuit Judges Advisory Committee
I taught at the new circuit judge’s orientation in the area of criminal law and
procedure. In doing so, I used the Criminal Trial Benchbook for New Circuit
Judges, which I supplied in my response to question 12(a).

February 19, 1999: Winning Evidence: Making Rules Work for You, South
Carolina Bar CLE Division. Notes are supplied.

11

28

September 1998: Post Trial Motions: New Developments in Case Law, South
Carolina Bar CLE Division. Notes are supplied.

June 1998 : A Reporter 's Guide to Opening and Closing Court Doors , South
Carolina Bar Association and S.C. Press Association Joint Seminar. The speech
addressed the South Carolina rules and case law concerning when and under what
circumstances a court proceeding could be closed and the right of the press to
challenge the closing. I have no notes, transcript or recording. The address of the
Bar Association is 950 Taylor Street, Columbia, South Carolina 29201.

May 8, 1998: Scheduled speaker at ceremony of appreciation for retiring
Comptroller General Earle E. Morris Jr., Pickens County Courthouse. After
searching my records, public records databases, and the Internet, I have been
unable to confirm or recall whether 1 did or did not give this speech. 1 have no
notes, transcript or recording. The address of the Courthouse is 214 East Main
Street, #A100, Pickens, South Carolina 29671.

May 1998: Courtroom Decorum, S.C. Women Lawyers Association. The speech
was a list of personal tips about maintaining proper decorum. I have no notes,
transcript or recording. The address of the Association is P.O. Box 1 1910,
Columbia, South Carolina 2921 1.

January 1998: The Complex Case in the State Court System: Trial by Endurance,
South Carolina Bar CLE Division. Notes are supplied.

August 1997: Update of Comparative Negligence, Friend or Foe?, South
Carolina Circuit Court Judges Association Annual Conference. I have no notes,
transcript or recording. The Association does not have a physical address, but the
address of the South Carolina Judicial Department is 950 Taylor Street, #120,
Columbia, South Carolina 29201.

May 1997: Executions/Judgments and Forfeitures Roundtable, South Carolina
Association of Clerks of Courts. I have no notes, transcript or recording. The
Association does not have a physical address. The Association is currently
headed by David Hamilton, York County Clerk of Court. Hamilton can be
reached at P.O. Box 649, 1675 - 1G York Highway, York, South Carolina 29745.

September 13, 1 996: Post Trial Procedures: Punitive Damage Award Review,
Motions for New Trial Nisi, and Motions for New Trial Absolute, South Carolina
Bar CLE Division. Notes are supplied.

October 1 995: Overview of the New South Carolina Rules of Evidence Panel
Discussion, South Carolina Solicitors Association Annual Conference. I have no
notes, transcript or recording. The address of the Association is P.O. Box 1 1251,
Columbia, South Carolina 2921 1 .

12

29

August 1995: Speaker, Rule 40: A Basis for Differentiated Case Management ,
South Carolina Circuit Judges’ Association Annual Conference, Columbia, South
Carolina. This was basically a repeat of the previously presented talk on Rule 40
from the June 1995 CLE (a copy of which is supplied).

June 1995: SCRCP Rule 40 and the Complex Litigation Track, South Carolina
Bar CLE Division. Notes are supplied.

December 1994: Mass Tort Litigation — Is Efficiency an Enemy of Justice?
Greenville County Bar Association. At the time this talk was given, I was
managing all the breast implant litigation in the state, and the speech addressed
some of the problems I was encountering. I have no notes, transcript or
recording. The address of the Bar Association is P.O. Box 10145, Greenville,
South Carolina 29603.

December 1993: Speaker, State Court Update -A Day with the Judges ,
Greenville County Bar Association. This was a recap of major state court
appellate decisions for that year. I have no notes, transcript or recording. The
address of the Bar Association is P.O. Box 10145, Greenville, South Carolina
29603.

October 1993: Speaker, Prior Bad Acts, South Carolina Solicitors’ Association.
The speech was about South Carolina Rule of Evidence 404(b) or the Lyle rule,
and was a survey of the case law and the procedure to follow in seeking
admission of 404(b) material. I have no notes, transcript or recording. The
address of the Association is P.O. Box 11251, Columbia, South Carolina 2921 1.

October 1992: Ethics in Closing Arguments, South Carolina Solicitors
Association, P.O. Box 1 1251, Columbia, South Carolina 2921 1. The speech was
about the “do’s” and “don’ts” in making a closing argument under the rules and
case law of South Carolina. I have no notes, transcript or recording. The address
of the Association is P.O. Box 11251, Columbia, South Carolina 29211.

October 1992: Comparative Negligence: Friend or Foe?, South Carolina Bar
CLE Division. Notes are supplied.

June 25, 1992: My investiture ceremony as a South Carolina Circuit Judge for the
Thirteenth Judicial Circuit. Transcript and press coverage supplied.

June 1 992: Comparative Negligence in South Carolina, South Carolina Bar CLE
Division, 950 Taylor Street, Columbia, South Carolina 29201. Notes are
supplied.

January 16, 1987: Family Law Program, Legal Education Institute, Greenville,
South Carolina. I spoke on evidence, procedure and equitable property
distribution. I have no notes, transcript or recording. I am unable to recall what

13

30

the Legal Education Institute was or whether it goes by another organizational
name at present.

For several years, I have participated as a judge for mock trial competitions. For
instance, on April 8, 2005, 1 served as a presiding judge in the intra-school moot
court competition at Emory University School of Law. Prior to the competition, I
also spoke to a class. Also, on November 4, 2010, 1 presided over the University
of South Carolina School of Law’s Mock Trial Competition. I have no notes,
recordings or transcripts, but University of South Carolina coverage of the 2010
competition is supplied.

From 1996 to 2002, as a member of the South Carolina Circuit Judges Advisory
Committee, I taught at the new circuit judges orientation. The subject matter of
these classes was criminal law and procedure. 1 do not know the dates of these
courses, and 1 have no notes, transcripts or recordings.

In addition to these speeches or presentations, from 1 973 to the present, I have
given over a dozen other speeches, mostly to civic clubs. Some were to entities
like a municipal or county association. All of the talks were either informing a
group about the status of legislation, about legislative procedures, or about court
procedures. I have also given a few speeches about the humorous things that have
happened to me in the courtroom. Most of these speeches occurred many years
ago and I am unable to provide more specific information about their dates and
locations; nor do I have copies of, or notes from, these speeches.

I occasionally gave remarks on the floor of the South Carolina House of
Representatives and in committee hearings during my service as a legislator from
1973 to 1978, but I do not have any notes from such remarks and no transcript or
recording of them is available. These remarks were delivered at the State House,

1 101 Gervais Street, Columbia, South Carolina 2921 1.

e. List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.

Eric Connor, Obama 's Appellate Court Choice has Record of Independence ,
Greenville News, Jan. 28, 201 1. Copy supplied.

James Rosen, Obama Nominates S.C. Federal Judge to Appellate Court ,
McClatchy Washington Bureau, Jan. 27, 2011. Copy supplied.

President 's Article , G-Bar News, April 2010, at 3. Copy supplied.

Katrina Daniel, Legal Lion, Greenville Magazine, June 2009, at 24. Copy
supplied.

14

31

Dudley Brown, Russell Watches Over, Spartanburg Herald-Journal, Dec.
16,2008. Copy supplied.

Ruminations, G-BarNews, January 2007. Copy supplied.

Lauren Markoe, Humane Instincts Distinguish Floyd, The State, Sept. 28, 2003,
atBl. Copy supplied.

Andy Paras, Senate Backs Seating Floyd on Fed Bench , THE Greenville News,
Sept. 24, 2003, at Bl. Copy supplied.

Lauren Markoe, Panel Advances Floyd 's Nomination , The State, Sept. 5, 2003,
atBl. Copy supplied.

Lauren Markoe, Senate Panel Holds Floyd's Judicial Hearing , THE STATE, July
31, 2003, at B3. Copy supplied.

Rick Brundrett, Budget Cuts Blamed Again for Jail Stays , The State, July 23,
2003, at B 1 . Copy supplied.

Nichole Monroe Bell & Henry Eichel, Judge: Mental Health Must Explain
Backlog: Budget Was Blamed for III People Stuck in Jail , CHARLOTTE OBSERVER,
July 22, 2003, at 1 B. Copy supplied.

Aaron Gould Sheinin, Mental Health Officials to Give Answers in Court , The
State, July 22, 2003, at Al.

Anna Simon, Pickens Judge Gels Federal Nomination, The Greenville News,
May 17, 2003, at B2. Copy supplied.

Lauren Markoe, Floyd Nominated to be Federal Judge, THE State, May 16,
2003, at B 1 . Copy supplied.

Circuit Judge Henry Floyd Nominated for Federal Judgeship, Associated
Press, May 16, 2003. Copy supplied.

Rick Brundrett, Project Slashes Backlog of Richland Court Cases, THE State,
Jan. 23, 2003, at Bl. Copy supplied.

John Boyanoski, Pickens Judge: System to Ease Backlog Working, THE
Greenville News, May 29, 2002, at Bl. Copy supplied.

John Boyanoski, Docket Plan Working: Next Hurdle in May, The Greenville
News, Mar. 4, 2002, at Bl. Copy supplied.

15

32

John Boyanoski, Fewer Cases, Convictions, Yet Justice Slows, The GREENVILLE
News, Dec. 30, 2001, at Al. Copy supplied.

John Boyanoski, Judge Aims to Ease Court Backlog, The Greenville News,
May 1 4, 200 1 , at B 1 . Copy supplied.

Circuit Court Judge Puts Backlogged Criminal Cases on a Fast-Track,
Associated Press, May 14, 2001 [reprinted in the Charlotte Observer and
Columbia State on May 15, 2001], Copy supplied.

Erikah Haavie, Pickens Courthouse Security Questioned, The Greenville News,
Sept. 20, 2000, at B 1 . Copy supplied.

Andrea Weigl, Indictment Sought in Investigation of Mann, The Greenville
News, Apr. 5, 2000, at Al . Copy supplied.

Diane Norman, Crowded Jail Drives County to Action, HERALD-JOURNAL, May 9,
1 999, at Al . Copy supplied.

Weekend Inmate System Not Working Well in Spartanburg County, ASSOCIATED
PRESS, Mar. 6, 1999. Copy supplied.

Mandatory Drug Sentences Not Followed, Study Finds, CHARLOTTE OBSERVER,
July 19, 1998, at 8Y. Copy supplied.

Dave Breitenstein, Lack of Potential Jurors Causes Courts to Struggle with
Trials, Anderson Independent-Mail, July 1 1, 1998. Copy supplied.

Dave Breitenstein, Intervention Program Helps Rehabilitate Criminals,
Anderson Independent-Mail, Mar. 27, 1998. Copy supplied.

Kathy Steele, Judge Ready to Start New Ellenton Case, AUGUSTA Chronicle,
Sept. 8, 1996, at C02. Copy supplied.

Kathy Steele, Beasley Considering Response to Resignations, Augusta
Chronicle, Aug. 3, 1996, at C2. Copy supplied.

Kathy Steele, Judge Gives Alternative to Prison, Augusta Chronicle, May 2,
1996, at C9. Copy supplied.

S.C. Courts Brace for Onslaught of Breast-Implant Lawsuit Cases, The STATE,
Nov. 17, 1995, at B 12. Copy supplied.

Mona Breckenridge, S.C. Chief Justice Ernest Finney, Charlotte Observer,
Sept. 15, 1995, at 5C. Copy supplied.

16

33

Death Penalty Expensive, Herald-Journal, Feb. 15, 1993. Copy supplied.

Anna Simon, Floyd Sworn in as Pickens Judge , The Greenville News, June 26,
1 992, at C 1 . Copy supplied.

Pickens to Pay Murder Defendant’s Fees , The State, Jan. 5, 1992, at 5B. Copy
supplied.

Senator's Widow Wins S.C, Race, Rock Hill Herald, Sept. 16, 1981, at 14.

Copy available on-line:

http://news.google.com/newspapers?id-yvotAAAAIBAJ&siid=-

aYE AAAAIBAJ&pg-2930.17S2305&da=henrv +fl ovd&hNen .

Carolyn Teague, Bills Ask Home Rule Act Change, ROCK HlLL HERALD, Feb. 1 8,
1976, at 1. Copy available on-line:

httD://news.google.com/newsnaoers?id=li A tAAAAIBAJ&siid=gqOEAAAATBA
J&pg=2042,4 I 3551 l&dq=henrv+flovd+pickens&hl=en .

School Aid Bill Recalled by the House, Herald-Journal, Feb. 13, 1975, at B8.
Copy available on-line:

http.7/news.google.com/newspapers?id=XOOsAAAAlBAJ&siid~LsOEAAAAIB A
J&pg-29 8 0. 1 988320&dq=henrv+flovd+pickens&hl=en .

Bills Would Stop Price Fixing, Provide Free Textbooks for All, Herald-
Journal, Jan. 1 1, 1974, at Bl. Copy available on-line:
http://news.gooale.com/newspapers?id=wlAsAAAAIBAJ&siid=UcOEAAAAIBA
J&oa=577 1 , 1 957944&dq^henrv+(lovd+pickens&hNen .

Avoiding National Support, Old Gold & Black, Sept. 20, 1968, at 2. Copy
supplied.

13. Judicial Office : State (chronologically) any judicial offices you have held, including
positions as an administrative law judge, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.

In 1992, 1 was elected by the South Carolina General Assembly as a Circuit Court Judge
for the Thirteenth Judicial Circuit of South Carolina. In South Carolina, the Circuit Court
is a court of general trial jurisdiction. On the criminal side, its responsibilities range from
minimum penalties of thirty days to imposition of the death penalty. On the civil side, its
judges have complete and concurrent jurisdiction over civil matters other than domestic
and probate litigation, with limited exceptions. During my years as a Circuit Judge, I was
designated to sit as an Acting Justice on the South Carolina Supreme Court from time to
time. I served as a State Circuit Court judge until my appointment as a United States
District Judge.

17

34

In 2003, 1 was appointed by President George W. Bush as a United States District Judge
in the District of South Carolina, where I am currently serving. Since becoming an
Article III judge, I have sat by designation several times on the United States Court of
Appeals for the Fourth Circuit,

a. Approximately how many cases have you presided over that have gone to verdict
or judgment?

During my service as a federal judge, I have presided over approximately 35 civil
and criminal cases to verdict or judgment. In my eleven years on the state bench,
I presided over approximately one thousand criminal and civil cases to verdict or
judgment.

i. Of these, approximately what percent were:

jury trials:

80%

bench trials:

20%

civil proceedings:

40%

criminal proceedings:

60%

b. Provide citations for all opinions you have written, including concurrences and
dissents.

See Attached List.

c. For each of the 10 most significant cases over which you presided, provide: (!) a
capsule summary of the nature the case; (2) the outcome of the case; (3) the name
and contact information for counsel who had a significant role in the trial of the
case; and (3) the citation of the case (if reported) or the docket number and a copy
of the opinion or judgment (if not reported).

1. Padilla v. Hanfl, 389 F. Supp. 2d 678 (D.S.C. 2005), rev 'd, 423 F.3d 386 (4th
Cir. 2005), motion to vacate denied , 432 F.3d 582 (4th Cir. 2005), cert,
denied , 547 U.S. 1062 (2006).

In this habeas corpus proceeding, I granted Petitioner’s motion for summary
judgment, issued a writ of habeas corpus, and directed the government to
either bring criminal charges against Petitioner or release him. I concluded
that Congress had not authorized the detention of Petitioner, an American
citizen arrested on American soil and detained as an enemy combatant. The
Court of Appeals reversed, concluding that the President had been granted the
authority to detain Petitioner as an enemy combatant, rendering improper the
issuance of the writ of habeas corpus. Petitioner sought a writ of certiorari
from the Supreme Court. The government subsequently moved the Court of
Appeals for authorization to transfer Petitioner immediately out of military
custody and into federal civilian law enforcement custody and suggested that

18

35

the Court of Appeals withdraw its earlier opinion. The Court of Appeals
denied the request. Thereafter, the Supreme Court granted the government’s
request regarding the transfer and denied as moot Petitioner’s application for
certiorari.

Counsel for the Petitioner: Michael P. O’Connell, Stirling O’Connell and
Pennington, P.O. Box 882, Charleston, SC 29402, (843) 577-9890; Jonathan
Marc Freiman, National Litigation Project, 127 Wall Street, New Haven, CT
06570, (203) 498-4584; Donna R. Newman, 121 West 27th Street Suite 1 103,
New York, NY 10001,(212)229-1516. Counsel for the Government: Kevin
F. McDonald, U.S. Attorney’s Office, 1441 Main Street, Suite 500, Columbia,
SC 29201, (803) 929-3000.

2. Al-Marri v. Wright, 443 F. Supp. 2d 774 (D.S.C. 2006), rev’d, 487 F.3d 160
(4th Cir. 2007), rev’d en banc, Al-Marri v. Pucciarclli, 534 F.3d 213 (4th Cir.
2008), vacated by, Al-Marri v. Spagone , 129 S. Ct. 1 545 (2009).

In this case. Petitioner challenged his military detention as an enemy
combatant. Applying the Supreme Court’s Hamdi opinion, I concluded that
the government had put forth sufficient evidence to support Petitioner’s
detention as an enemy combatant and that Petitioner had failed to put forth
evidence contradicting this information. In a two-to-one opinion, the Court of
Appeals reversed. Subsequently, the case was argued en banc. In a divided
opinion, the Court of Appeals reversed. Writing the controlling concurrence,
Judge Traxler concluded that Congress had authorized the President to detain
enemy combatants but that Petitioner was denied due process in his attempt to
challenge the factual basis for his designation as such. When Petitioner was
transferred into civilian custody, the Supreme Court vacated the opinion of the
Court of Appeals.

Counsel for the Petitioner: Andrew John Savage, III, Savage and Savage, P.O.
Box 1002, Charleston, SC 29402, (843) 720-7470; Jonathan L. Hafetz,
American Civil Liberties Union, 125 Broad Street, New York, NY 10004,
(212) 549-2583; Lawrence Steven Lustberg, Gibbons Del Deo Dolan
Griffmger and Vecchione, One Riverfront Plaza, Newark, NJ 07102, (973)
596-4500; Mark A. Berman, Hartmann Doherty Rosa and Berman, 126 State
Street, Hackensack, NJ 07601 , (201) 441-9056. Counsel for the Government:
Kevin F. McDonald, U.S. Attorney’s Office, 1441 Main Street Suite 500,
Columbia, SC 29201, (803) 929-3000.

3. United States v. Mclver , 8:04-cr-00745-HFF (D.S.C. 2005).

Defendant was charged with unlawful distribution of a controlled substance,
unlawful distribution of a controlled substance resulting in a death, and
conspiracy to unlawfully distribute a controlled substance. Defendant
operated a medical clinic for the purpose of treating chronic pain. The

19

36

evidence at trial demonstrated that a Drug Enforcement Agency investigation
of the clinic found that Defendant prescribed massive quantities of controlled
substances to his patients, some of whom traveled great distances, appeared
without referrals, paid in cash, and were prescribed drugs that they
specifically requested after little or no examination. This trial required me to
make rulings concerning expert testimony, which are atypical in most criminal
proceedings. After a seven day trial, Defendant was convicted. I sentenced
him to 360 months incarceration and five years supervised release. The Court
of Appeals subsequently affirmed Defendant’s conviction and sentence.

United Stales v. Mclver, 470 F.3d 550 (4th Cir. 2006).

Counsel for the Government: William Corley Lucius, U.S. Attorney’s Office,
P.O. Box 10067, Greenville, SC 29603, (864) 282-2100. Counsel for the
Defendant: Clarence Rauch Wise, 305 Main Street, Greenwood, SC 29646,
(864) 229-5010.

Defendant subsequently filed amotion to vacate pursuant to 28 U.S.C. § 2255,
which I granted in part and denied in part. Specifically, I vacated the two
counts concerning the death of one of Defendant’s patients. A copy of that
order is supplied. At resentencing, the Guidelines provided for a sentence in
the range of 121 to 151 months imprisonment and three years supervised
release. After considering the factors set forth in 18 U.S.C. § 3553(a) and the
evidence presented to me that Defendant has cancer and has been given just
one year to live, I sentenced Defendant to time served (66 months) and three
years supervised release.

Counsel for the Government: William J. Watkins, Jr., U.S. Attorney’s Office,
P.O. Box 10067, Greenville, SC 29603, (864) 282-2100. Counsel for the
Defendant: Peter Robert Zeidenberg, DLA Piper US, 500 Eighth Street NW,
Washington, DC 20004, (202) 799-453 1 .

4. United States v. Trout, Criminal Action No. 6:08-cr-01055-HFF (D.S.C.

2009).

Except for the Padilla case, this case received more local media attention than
any other that I have presided over since I have been on the federal trial court.
The matter involved a local county councilman who was accused of illegally
accessing the computer of the county administrator with computer spyware.

In doing so. Defendant found highly embarrassing information about the
county administrator’s personal life, which the Defendant wished to make
known to the jury. I disallowed such disclosure. Defendant’s main defense
was that, as a county councilman, he was in effect the supervisor of the county
administrator and, thus, was able to access the county administrator’s county
computer. I ruled, however, that state law makes clear that it is the county
council as a whole, and not an individual county councilman, who supervises
county employees. Defendant was convicted of violations of the Computer

20

37

Fraud and Abuse Act, 1 8 U.S.C. § 1030 and the Electronic Communications
Privacy Act, 1 8 U.S.C, §2511. Because this is one of the few convictions in
the country under the Electronic Communications Privacy Act, there was little
case law to guide me in some of my rulings. I sentenced Mr. Trout to one
year and one day incarceration and three years supervised release. The Court
of Appeals subsequently affirmed his conviction and sentence. United States
v. Trout, No. 09-4719, 2010 WL 893430 (4th Cir. Mar. 12, 2010).

Counsel for the Government: Dean A. Eichelberger, U.S. Attorney’s Office,
1441 Main Street Suite 500, Columbia, SC 29201, (803) 929-3000; Josh
Goidfoot, U.S. Department of Justice, Computer Crime and Intellectual
Property Section, 1301 New York Avenue, N.W., Suite 600, Washington, DC
20005, (202) 514-1026. Counsel for the Defendant: Benjamin Thomas Stepp,
Federal Public Defender’s Office, Two Liberty Square, 75 Beattie Place, Suite
950, Greenville, SC 29601, (864) 235-8714.

5. South Carolina v. LendingTree, LLC , 6:08-cv-03044-HFF (Lead Case), slip
op. (D.S.C. May 19,2009).

Most of the solicitors in South Carolina brought separate civil actions in state
court in the name of the State against Defendant for alleged violations of the
South Carolina Mortgage Broker’s Act. Defendant removed the actions to
this Court pursuant to the Class Action Fairness Act (CAFA). Plaintiffs
moved to remand, and Defendant argued that the solicitors were actually
bringing the actions in a representative capacity and, as such, the actions were
properly removeable pursuant to CAFA. Defendant based much of its
argument on CAFA’s legislative history. Inasmuch as the statute is clear that
a class action must be brought by one or more representative persons, I ruled
that looking at the legislative history was improper. Accordingly, in that the
actions were brought in the name of the State, and not in a representative
capacity, I remanded the cases to state court.

Counsel for Plaintiff: Car! Frederick Muller, Wyche Burgess Freeman and
Parham, P.O. Box 728, Greenville, SC 29602, (864) 242-8200; Matthew T.
Richardson, Wyche Burgess Freeman and Parham, P.O. Box 12247,
Columbia, SC 29211 , (803) 254-6542. Counsel for Defendant: Benjamin
Rush Smith, III, Nelson Mullins Riley and Scarborough, P.O. Box 11070,
Columbia, SC 2921 1, (803) 799-2000; John T Moore, Nelson Mullins Riley
and Scarborough, P.O. Box 1 1070, Columbia, SC 29211, (803) 255-9415.

6. Russell v. Wachovia Bank, N.A., No. 99-CP-42-367, tiff'd, 353 S.C. 208, 578
S.E.2d 329 (2003), aff'd in part and rev 'd in part on subsequent appeal, 370
S.C. 5, 633 S.E.2d 722 (2006).

This civil case involved a challenge to the will of the late Judge Donald
Russell, who died with an estate worth $33 million. Two of his children

21

38

asserted that his will was invalid as the product of undue influence. Given the
undisputed evidence of Judge Russell’s competence, I granted Defendant’s
motion for summary judgment, concluding that there were no genuine issues
of material fact regarding whether the will was the product of undue
influence. Specifically, the evidence established that Judge Russell actively
worked as a circuit court judge until the day of his death. Moreover, Judge
Russell generally met with his estate attorney alone, and there was no
evidence that the alleged improper benefactors ever met with Judge Russell
and his attorney. With the clarification that North Carolina law governed the
interpretation of certain trust documents, my decision was affirmed on appeal
by the South Carolina Supreme Court. Subsequently, after additional
proceedings, I struck down the no-contest clauses in the will, imposed
sanctions against one of the children, and found that other children had waited
too long to file their motion for sanctions. The South Carolina Supreme Court
upheld my imposition of sanctions, but concluded that 1 should have
considered the other motion for sanctions and also that the no-contest clause
was valid.

Counsel for Plaintiff: Neil Robinson, 1125 East Morehead Street, Suite 207,
Charlotte, NC 28204, (704) 373-0077. Counsel for Defendants: Hoover C.
Blanton, Hopkins & Campbell, LLP, P.O. Box 1 1963, Columbia, SC 29211,
(803) 255-0998; Moffatt G. McDonald, Haynsworth, Sinkler, Boyd, PA, P.O.
Box 2048, Greenville, SC 29602, (864) 240-3336; Stanley Case, Butler,
Means, Evins, & Browne, PA, P.O. Drawer 451, Spartanburg, SC 29304,
(864) 585-2034.

7. Hanahan v. Simpson , No. 92-CP-23-4296 (Order for Sanctions), aff’d in part,
rev’din part , 326 S.C. 140, 485 S.E.2d 903 (1997).

This case was another will challenge, but, unlike Russell , it proceeded to a
jury trial on most issues. Specifically, the will involved the $48 million estate
of Henry Belk Simpson. One of Mr. Simpson’s daughters challenged the will
as the product of fraud, mistake, and undue influence. Plaintiff was concerned
about a special power of appointment in her father’s will that, if exercised,
allowed her mother to by-pass her and pass her share to her children. The
evidence revealed that Mrs. Simpson was given this power to take advantage
of any tax law changes that might encourage generation skipping. After a
two-week trial, I granted a directed verdict as to the issues of fraud and
mistake. The jury then considered the question of undue influence and
determined that the will was not the product of undue influence. 1 also
ordered Plaintiff to pay $548,3 1 7.38 in damages under the South Carolina
Frivolous Civil Proceedings Act. The South Carolina Supreme Court
affirmed my conclusions as to the validity of the will, but it reversed my
assessment of damages, finding that, because the undue influence claim
survived a motion for a directed verdict, it was not frivolous.

22

39

Counsel for Plaintiff: Thomas H. Pope, Pope & Hudgens PA, P.O. Box 190,
Newberry, SC 29108, (803) 276-2532. Counsel for Defendant: R. David
Massey, Brown, Massey, Evans, McLeod, & Haynsworth, P.O. Box 2464,
Greenville, SC 29602, (864) 271-7424; John A. Hagins, Jr., Covington,
Patrick, Hagins, Stems, & Lewis, P.O. Box 2343, Greenville, SC 29602, (864)
242-9000; Elizabeth Van Doren Gray, Sowell Gray Stepp & Laffitte, LLC,
P.O. Box 1 1449, Columbia, SC 29211, (803) 231-7827.

8. State v. Council, No. 94-GS-2-1049, affd, 335 S.C. 1,515 S.E.2d 508 (1999),
cert, denied, 528 U.S. 1050 (1999).

This case was one of the most graphic and gruesome murder trials of my legal
career, but it is also a case that continues to have legal significance in South
Carolina. In particular, 1 was one of the first judges in the country to address
the admissibility of mitochondrial DNA evidence. 1 concluded that this
evidence was admissible under South Carolina’s Rules of Evidence and also
under Daubert. Though the state supreme court did not adopt Daubert, it did
approve my application of the South Carolina Rules of Evidence and upheld
my admission of the DNA evidence. The court also upheld my exclusion of
polygraph results during the penalty phase of the trial.

Counsel for the State: Barbara Morgan, 342 Dupree Place, Aiken, SC 29801.
Defense Counsel: James E. Whittle, Johnson, Johnson, Whittle & Snelgrove,
P.O. Box 26 1 9, Aiken, SC 29802, (803) 64 1 -45 1 7.

9. State v. Humphries, No. 94-GS-23-4175, aff'd, 325 S.C. 28, 479 S.E.2d 52
(1996).

This was a death penalty case in which Defendant was tried and convicted of
murder. It involved at least two unique legal issues. I instructed the jury that
attempted armed robbery accompanying murder is an aggravating
circumstance in determining whether to sentence one to life or to death. The
South Carolina Supreme Court agreed with my instruction. On appeal.
Defendant also challenged the introduction of victim impact testimony
because he was not provided notice that the State was offering such testimony.
The court also affirmed my admission of the victim impact evidence.

Counsel for the State: Joe Watson, 664 East Washington Street, Greenville,

SC 29601, (864) 467-0380. Defense Counsel: John Mauldin, P.O. Box
10264, Greenville, SC 29603, (864) 467-8522.

10. State v. Beckham, No. 96-GS-36-79, aff'd, 334 S.C. 302, 513 S.E.2d 606
(1999).

This was one of the most high profile cases 1 ever tried as a judge. It involved
the murder of the daughter of a prominent state senator by the son of an

23

40

Episcopal bishop. The three-week trial was televised live on Court Television
without incident. A jury found Defendant guilty, and I sentenced him to life
in prison. Defendant appealed many of my evidentiary decisions to the South
Carolina Supreme Court, but my decisions were affirmed and Defendant’s
conviction was upheld.

Counsel for the State: W. Townes Jones, IV, 116 Court Avenue West,
Greenwood, SC 29646. Defense Counsel: Richard Harpootlian, P.O. Box
1090, Columbia, SC 29202, (803) 252-4848; Jack Swerling, 1720 Main Street
#301, Columbia, SC 2920 1 , (803) 765-2626.

d. For each of the 10 most significant opinions you have written, provide: (1)

citations for those decisions that w'ere published; (2) a copy of those decisions that
were not published; and (3) the names and contact information for the attorneys
who played a significant role in the case.

1 . Padilla v. Hanft, 389 F. Supp. 2d 678 (D.S.C. 2005), rev 'd, 423 F.3d 386 (4th
Cir, 2005), motion to vacate denied, 432 F.3d 582 (4th Cir. 2005), cert,
denied , 547 U.S. 1062 (2006).

Counsel for the Petitioner: Michael P. O’Connell, Stirling O’Connell and
Pennington, P.O. Box 882, Charleston, SC 29402, (843) 577-9890; Jonathan
Marc Freiman, National Litigation Project, 127 Wall Street, New Haven, CT
06570, (203) 498-4584; Donna R. Newman, 121 West 27th Street, Suite 1103,
New York, NY 1 000 1 , (2 1 2) 229- 1516. Counsel for the Government: Kevin
F. McDonald, U.S. Attorney’s Office, 1441 Main Street, Suite 500, Columbia,
SC 29201, (803) 929-3000.

2. Al-Marri v. Wright, 443 F. Supp. 2d 774 (D.S.C. 2006), rev'd , 487 F.3d 160
(4th Cir. 2007), rev'd en banc, Al-Marri v. Pucciarelli , 534 F.3d 213 (4th Cir.
2008), vacated by Al-Marri v. Spagone, 129 S. Ct. 1545 (2009).

Counsel for the Petitioner: Andrew John Savage, III, Savage and Savage, P.O.
Box 1 002, Charleston, SC 29402, (843) 720-7470; Jonathan L. Hafetz,
American Civil Liberties Union, 125 Broad Street, New York, NY 10004,
(212) 549-2583; Lawrence Steven Lustberg, Gibbons Del Deo Dolan
Grifftnger and Vecchione, One Riverfront Plaza, Newark, NJ 07102, (973)
596-4500; Mark A. Berman, Hartmann Doherty Rosa and Berman, 126 State
Street, Hackensack, NJ 07601, (201) 441-9056. Counsel for the Government:
Kevin F. McDonald, U.S. Attorney’s Office, 1441 Main Street, Suite 500,
Columbia, SC 29201, (803) 929-3000.

24

41

3. Hicks v. Fed. Bureau of Prisons, 603 F, Supp. 2d 835 (D.S.C. 2009), aff'd.
No. 09-7205, 2009 U.S. App. LEXIS 27813 (4th Cir. Dec. 18, 2009).

Counsel for the Petitioner. David Ray Hicks (Pro Se), No. 09109-032, FCI
Edgefield, P.O. Box 725, Edgefield, SC 29824. Counsel for the Government:
Beth Drake, U.S. Attorney’s Office, 1441 Main Street, Suite 500, Columbia,
SC 29201,(803)929-3000.

4. South Carolina v. LendingTree, LLC, 6:08-cv-03044-HFF, slip op. (D.S.C.
May 19,2009).

Counsel for Plaintiff: Carl Frederick Muller, Wyche Burgess Freeman and
Parham, P.O. Box 728, Greenville, SC 29602, (864) 242-8200; Matthew T.
Richardson, Wyche Burgess Freeman and Parham, P.O. Box 12247,
Columbia, SC 2921 1, (803) 254-6542. Counsel for Defendant: Benjamin
Rush Smith, III, Nelson Mullins Riley and Scarborough, P.O. Box 1 1070,
Columbia, SC 2921 1, (803) 799-2000; John T. Moore, Nelson Mullins Riley
and Scarborough, P.O. Box 11070, Columbia, SC 2921 1, (803) 255-9415.

5. Long John Silver ’s Rests., Inc. v. Cole , 409 F. Supp. 2d 682 (D.S.C. 2006),
aff'd, 514 F.3d 345 (4th Cir. 2008).

Counsel for Plaintiff: Frank S. Holleman, III, Wyche Burgess Freeman and
Parham, P.O. Box 728, Greenville, SC 29602, (864) 242-8200. Counsel for
Defendant: Brian P. Murphy, Brian Murphy Law Firm, 514 Pettigru,
Greenville, SC 29601, (864) 370-9400.

6. Russell v. Wachovia Bank. N.A., No. 99-CP-42-367, affd, 353 S.C. 208, 578
S.E.2d 329 (2003), aff'd in part and rev'd in part on subsequent appeal, 370
S.C. 5, 633 S.E.2d 722 (2006).

Counsel for Plaintiff: Neil Robinson, i 125 East Morehead Street, Suite 207,
Charlotte, NC 28204, (704) 373-0077. Counsel for Defendants: Hoover C.
Blanton, Hopkins & Campbell, LLP, P.O. Box 1 1963, Columbia, SC 29211,
(803) 255-0998; Moffatt G. McDonald, Haynsworth, Sinkler, Boyd, PA, P.O.
Box 2048, Greenville, SC 29602, (864) 240-3336; Stanley Case, Butler,
Means, Evins, & Browne, PA, P.O, Drawer 451, Spartanburg, SC 29304,
(864) 585-2034.

7. Glover v. Suit! Constr. Co., No. 93-CP-23-21 59, affd, 3 1 8 S.C. 465,

458 S.E.2d 535 (1995).

Counsel for Plaintiff: Robert M. Holland, P.O. Box 5506, Spartanburg, SC
29304, (864) 582-0416; John Leslie Smith, P.O. Box 5625, Spartanburg, SC
29304, (864) 596-2038. Counsel for Defendant: Jack Griffeth, Collins &
Lacy, P.O. Box 5819, Greenville, SC 29606, (864) 282-9104.

25

42

8. Diamonds v. Greenville County , No. 95-CP-23-2144, aff'd, 325 S.C. 1 54, 480
S.E.2d 718 (1997).

Counsel for Plaintiff: Suzanne E. Coe, 115 Pelham Commons Boulevard,
Greenville, SC 29615, (404) 235-0636. Counsel for Defendant: W. Howard
Boyd, Jr., Gallivan, White & Boyd, P.A., P.O. Box 10589, Greenville, SC
29603, (864) 271-9580; Ronald Wray, Gallivan, White & Boyd, P.A., P.O.
Box 10589, Greenville, SC 29603, (864) 271-9580.

9. Bakala v. Bakala, 352 S.C. 612, 576 S.E.2d 156 (2003) (Floyd, J., sitting as
active justice).

Counsel for Appellant: Fleet Freeman, 941 Houston Northcutt Boulevard,
Suite 204, Mount Pleasant, SC 29464, (843) 216-0009. Counsel for
Respondent: Robert Rosen, 18 Broad Street, Suite 201, Charleston, SC 29401,
(843)377-1700.

10. Carolina First Corp., i>. Whittle , No. 96-CP- 23-3123, aff’d, 343 S.C. 176,

539 S,E.2d 402 (Ct. App. 2000).

Counsel for Plaintiff: John A. Hagins, Jr., Covington, Patrick, Hagins, Sterns
& Lewis, P.O. Box 2343, Greenville, SC 29602, (864) 242-9000. Counsel for
Defendant: David Freeman, Wyche Burgess Freeman & Parham, PA, P.O.
Box 728, Greenville, SC 29602, (864) 242-8202; Wallace Lightsey, Wyche
Burgess Freeman & Parham, PA, P.O. Box 728, Greenville, SC 29602, (864)
242-8207.

e. Provide a list of all cases in which certiorari was requested or granted.

The Supreme Court granted certiorari in the following case, for which I sat by
designation as a Fourth Circuit panel member:

Mid All. Med. Servs., LLC v. Sereboff, 407 F.3d 212 (4th Cir. 2005), aff’d,
Sereboff v. Mid All. Med. Servs., 547 U.S. 356 (2006).

The Supreme Court granted certiorari in the following case over which I
presided:

Al-Marri v. Wright , 443 F. Supp. 2d 774 (D.S.C. 2006), rev'd, 487 F.3d 160 (4th
Cir. 2007), rev 'd cn banc, Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008),
vacated by Al-Marri v. Spagone , 129 S. Ct. 1545 (2009).

The following list identifies cases in which the Supreme Court denied certiorari
review of cases over which I presided, or for which I sat by designation as a
Fourth Circuit panel member:

26

43

4th Circuit Cases

While v. Sun Life Assurance Co. of Canada, 488 F,3d 240 (4th Cir. 2007), cert,
denied , 552 U.S. 1022 (2007),

Rux v. Republic of Sudan, 461 F.3d 461 (4th Cir. 2006), cert, denied, 549 U.S.
1208 (2007).

Locklear v. Bergman & BevingAB, 457 F.3d 363 (4th Cir. 2006), cert, denied,
549 U.S. 1208(2007).

Logan v. JKV Real Estate Servs. (In re Bogdan), 414 F.3d 507 (4th Cir. 2005),
cert, denied, Stewart Title Guar. Co. v. Logan, 546 U.S. 1093 (2006).

Lambeth v. Bd. of Comm ' rs , 407 F.3d 266 (4th Cir. 2005), cert, denied , 546 U.S.
1015(2005).

United States v. Bush, 404 F.3d 263 (4th Cir. 2005), cert, denied , Bush v. United
States, 546 U.S. 916(2005).

Chaplin v. Du Pont Advance Fiber Sys., No. 04-1469, No. 04-1471, 124 F. App’x
771 (4th Cir. Mar. 10, 2005), cert, denied, Chaplin v. Du Pont Advance Fiber
Sys., 546 U.S. 927 (2005).

District Court Cases

Super Duper, Inc. v. Mattel, 7«c.,No. 6:05-1700-HFF-WMC (D.S.C. Mar. 31,
2009), ajf’d. No. 09-1397, 2010 U.S. App. LEXIS 1 1853 (4th Cir. June 10, 2010),
cert, denied, 201 1 U.S. LEXIS 720 (Jan. 18, 201 1).

United States v. Miller, No-04-22, 2007 U.S. Dist. LEXIS 66872 (D.S.C. Sept. 7,

2007) , cert, denied, 130 S. Ct. 393 (2009).

Roussos v. United Stales, No. 08-701 13, slip op. (D.S.C. June 3, 2009), cert,
denied , 2010 U.S. LEXIS 2428 (Mar. 22, 2010).

United Slates v. McDaniels, Crim. No. 06-36-HFF-l, slip op. (D.S.C. Nov. 12,

2008) , cert, denied, 176 L. Ed. 2d 203 (2010).

Dempsey v. Cart ledge. No. 08-1054-HFF-PJG, 2009 U.S. Dist. LEXIS 18393
(Mar. 10, 2009), cert, denied, 176 L. Ed. 2d 220 (2010).

Gantt v. United States, Crim. No. 04-1013, slip op. (D.S.C. Sept. 5, 2008), cert,
denied, 130 S, Ct. 346 (2009).

27

44

Medows v. City ofCayce, No. 07-409-HFF-BHH, 2008 U.S. Dist. LEXIS 52936
(D.S.C. June 24, 2008), cert, denied, 1 30 S. Ct. 306 (2009).

Kilgore v. Drew, No. 08-3200, 2008 U.S. Dist. LEXIS 85307 (D.S.C. Oct. 22,
2008), cert, denied, 129 S. Ct. 2421 (2009).

Dorsey v. Burn, No. 07-1865, 2008 U.S. Dist. LEXIS 92541 (D.S.C. Aug. 21,
2008), cert, denied, 129 S. Ct. 2793 (2009).

Cruz v. LaManna, No. 07-1060, 2008 U.S. Dist. LEXIS 14355 (D.S.C, Feb. 26,
2008), cert, denied, 129 S. Ct. 2421 (2009).

Stoudemire v. Padula, No. 07-3272-HFF-BHH, 2008 U.S. Dist. LEXIS 59865
(D.S.C. Aug. 4, 2008), cert, denied, 129 S. Ct. 2830 (2009).

United States v. Harrison, Crim. No. 07-552-HFF-l (D.S.C. Nov. 1, 2007), cert,
denied, 129 S. Ct. 610 (2008).

Webb v. Hamidullah, No. 05-2546-HFF-BM, 2006 U.S. Dist. LEXIS 50833
(D.S.C. July 24, 2006), cert, denied, Webb v. Rivera , 129 S. Ct. 1361 (2009).

Glover v, Rushton, No. 06-3454-HFF-BM, 2008 U.S. Dist. LEXIS 6675 (D.S.C.
Jan. 29, 2008), cert, denied, 130 S. Ct. 24 (2009).

Long John Silver’s, Inc. v. Cole, 409 F. Supp. 2d 682 (D.S.C. 2006), cert, denied,
129 S. Ct. 58 (2008).

United States v. Penland, Crim. No. 05-71 0-HFF-I (D.S.C. Sept. 13, 2006), cert,
denied, 553 U.S. 1059 (2008).

Wise v. South Carolina Dep 7 of Corr., No. 06-802-HFF-WMC, 2007 U.S. Dist.
LEXIS 14680 (D.S.C. Feb. 28, 2007), cert, denied, 128 S. Ct. 2528 (2008).

Wigfall v. Bunt, No. 06-I750-HFF-RSC, 2006 U.S. Dist. LEXIS 93793 (D.S.C.
Dec. 28, 2006), cert, denied, 552 U.S. 981 (2007).

Spence v. Yancey , No. 05-3478-HFF-WMC, 2006 U.S. Dist. LEXIS 39843
(D.S.C. June 14, 2006), cert, denied, 552 U.S. 1218 (2008).

United States v. Mclver , Crim. No. 04-745-HFF (D.S.C. Sept. 15, 2005), cert,
denied, 550 U.S. 936 (2007).

United States v. Roussos, Crim. No. 04-407-HFF (D.S.C. June 6, 2005), cert,
denied, 551 U.S. 1 168 (2007).

28

45

Scot! v. Ozminl , No. 05-2008-HFF, slip op. (D.S.C. Jan. 30, 2006), cert, denied,
550 U.S. 922 (2007).

Allen v. SSA , No. 04-280, 2005 U.S. Dist. LEXIS 40265 (D.S.C. Feb. 15, 2005),
cert, denied, 549 U.S. 861 (2006).

Pinckney v. McMaster, No. 04-22837, slip op. (D.S.C. July 12, 2005), cert,
denied , 547 U.S. 1 077 (2007).

Padilla v. Hanft, 389 F. Supp. 2d 678 (D.S.C. 2005), cert, denied , 547 U.S. 1062
(2006).

Stevenson v. South Carolina , No. 04-1465-HFF, slip op. (D.S.C. Mar. 3, 2005),
cert, denied, 546 U.S. 1 078 (2005).

Dingle v. South Carolina , No. 02-3422-HFF, slip op. (D.S.C. Sept. 15, 2004),
cert, denied , 547 U.S. 1080 (2006).

Burdette v. Rushton, No. 04-I249-HFF, slip op. (D.S.C. Oct. 22, 2004), cert,
denied , 546 U.S. 942 (2005).

Fluellen v. United Stales , No. 03-21 1-HFF, slip op. (D.S.C. July 29, 2004), cert,
denied, 546 U.S. 869 (2005).

f. Provide a brief summary of and citations for all of your opinions where your
decisions were reversed by a reviewing court or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings. If
any of the opinions listed were not officially reported, provide copies of the
opinions.

District Cou rt Case s

United States v. Johnson, No. 8:07-960-HFF-2 (D.S.C. Nov. 14, 2008), rev 'd and
remanded, 617 F.3d 286 (4th Cir. 2010). The Court of Appeals reversed my
admission of a DEA agent’s testimony as to the meaning of certain wiretapped
conversations because he was never qualified as an expert. The court also
disagreed with my admission of some of Defendant’s prior drug transactions.

United States v. Martinez, No. 7:08-1 12-HFF (D.S.C. Feb. 10, 2009), aff’d in
part, vacated in part, and remanded, No. 09-4184, 2010 U.S. App. LEXIS 12554
(4th Cir. June 18, 2010). The Court of Appeals vacated my sentence of 216
months imprisonment because I failed to address Defendant’s arguments for a
below-guidelines sentence based on the factors set forth in 18 U.S.C. § 3553.

United States v. McDowell, No. 7:07-71 l-HFF (D.S.C. Apr. 7, 2009), aff'd in
part, vacated in part, and remanded. No. 09-441 1, 2010 U.S. App. LEXIS 12422

29

46

(4th Cir, June 17, 2010). The Court of Appeals vacated my sentence of
Defendant as a career offender because he had two previous convictions for
failure to stop for a blue light under South Carolina law.

United States v. Tucker, Crim. No. 7:08-666-HFF-l (D.S.C. Apr. 3, 2009),
vacated and remanded , United States v. Lynn, 592 F.3d 572 (4th Cir. 2010). The
Court of Appeals reversed my decision to depart upwards from the guideline
range because I failed to provide a sufficient “individualized explanation.”

United States v. Garrett , Crim. No. 09-428-HFF (D.S.C. Oct. 5, 2009), affd , No.
09-4953, 2010 U.S. App. LEXIS 6375 (4th Cir. 2010). The Court of Appeals
found that my failure to ask Defendant at sentencing if she had gone over the
Presentence Investigation Report (PSR) with her attorney was error, but it was not
reversible error because it did not impact the outcome of the sentencing hearing.

Wojcicki v. Aiken Tech. Coll., No. 1:06-46 1-HFF-BM, 2006 U.S. Dist. LEXIS
35179 (D.S.C. Mar. 27, 2008), vacated and remanded. No. 08-1469, 2010 U.S.
App. LEXIS 528 (4th Cir. 2010). The Court of Appeals reversed my dismissal of
an employment discrimination case for Plaintiffs failure to exhaust his
administrative remedies, finding that I should have considered evidence of
exhaustion presented for the first time in Plaintiffs objections to the Magistrate
Judge’s Report and Recommendation.

Smith v. Smith, No. 0.07-275-HFF-GCK, 2008 U.S. Dist. LEXIS 5202 (D.S.C.
Jan. 22, 2008), rev 'd and remanded, 589 F.3d 736 (4th Cir. 2009). The Court of
Appeals reversed my dismissal of a prisoner’s complaint alleging a claim of
deliberate indifference, concluding that Plaintiff pled facts sufficient to state a
claim for deliberate indifference.

United Stales v. Spears, Crim. No. 08-1 12-HFF-3 (D.S.C. Dec. 4, 2008), aff'din
part, vacated in part, and remanded. No. 08-5216, 2009 U.S. App. LEXIS 24624
(4th Cir. 2009). The Court of Appeals affirmed a conviction for conspiracy to
murder a federal law enforcement officer based on the evidence, but it agreed
with Defendant that he was indicted under the wrong statute.

United States v. Allison, Crim. No. 8:05-55-HFF-l (D.S.C. Sept. 19, 2005),
vacated and remanded, 301 F. App’x 243 (4th Cir. 2008). The Court of Appeals
reversed my decision at sentencing that defendant-appellant failed to qualify for a
two-level safety-valve reduction under the sentencing guidelines.

Webb v. Hamidullah, No. 05-2546-HFF-BM, 2006 U.S. Dist. LEXIS 50833
(D.S.C. July 24, 2006), ajjT d, 281 F. App’x 159 (4th Cir. 2008). The Court of
Appeals affirmed my granting Defendants’ motion for summary judgment in a
prisoner case alleging deliberate indifference, but Judge Gregory wrote a strong
dissent in which he concluded that deliberate indifference existed.

30

47

Al-Marri v. Wright „ 443 F. Supp. 2d 11 A (D.S.C. 2006), rev 'd, 487 F.3d i 60 (4th
Cir. 2007), rev ' d , Al-Marri v. Pucciarelli , 534 F,3d 213 (4th Cir. 2008) (en banc),
vacated by Al-Marri v. Spagone , 129 S. Ct. 1545 (2009). The Court of Appeals,
in both a panel decision and a divided en banc opinion, reversed my finding that
the government had put forth sufficient evidence to support Petitioner’s detention
as an enemy combatant and that Petitioner had failed to put forth evidence
contradicting this information. Writing the controlling concurrence. Judge
Traxler concluded that Congress had authorized the President to detain enemy
combatants but that Petitioner was denied due process in bis attempt to challenge
the factual basis for bis designation as such. When Petitioner was transferred into
civilian custody, the Supreme Court vacated the opinion of the Court of Appeals.

Ellenburg v. Tom Johnson Camping Ctr., Inc., No. 06-1606-HFF, 2006 U.S. Dist.
LEXIS 36911 (D.S.C. May 31, 2006), rev 'd and remanded, Ellenburg v. Spartan
Motors Chassis, Inc., 519 F.3d 192 (4th Cir. 2008). The Court of Appeals
reversed my sua sponte remand of a products liability action, concluding that I
lacked the authority to sua sponte enter a remand order on what it deemed to be
procedural grounds.

United States v. Mitchell, Crim. No. 6:05-1 167-HFF-1 (D.S.C. Nov. 7, 2006),
rev'd, 518 F.3d 230 (4th Cir. 2008). The Court of Appeals reversed my finding
Defendant guilty of aggravated identity theft in a bench trial, finding that an
identifier for purposes of aggravated identify theft must be sufficient to identify a
specific individual, not simply use a name of another.

Scott v. Westinghouse Savannah River Co., No. 00-171 5-HFF-RSC, slip. op.
(D.S.C. Sept. 29, 2004), affd in part and vacated and remanded in part , Sherman
v. Westinghouse Savannah River Co., 263 F. App’x 357 (4th Cir. 2008). The
Court of Appeals affirmed my grant of summary judgment in favor of Defendants
in three of four consolidated employment discrimination cases, but reversed in the
fourth, concluding that Plaintiff had presented a prima facie case.

Reed v. Ozmint, 3:08-cv-02301-HFF (D.S.C. June 20, 2008), vacated and rev 'd,
No. 08-7 (4th Cir. 2008), stay denied, 128 S. Ct. 2953 (2008). The Court of
Appeals vacated my stay of Petitioner’s execution and reversed the judgment.

The Supreme Court then refused to stay the execution.

Vaughan v. Recall Total Info. Mgmt., No. 02-402-HFF (D.S.C. Apr. 6, 2005),
aff d in part, rev 'd in part and remanded, 217 F. App’x 21 1 (4th Cir. 2007). The
Court of Appeals reversed two of my findings in a bench trial for a breach of
contract action. The court concluded that, under the language of the contract,
revenues earned by a newly acquired company should not have been included in
the judgment. The court also disagreed with my conclusion that Defendant’s
counterclaim was barred by the limitations period provided in the sales contract.

31

48

United States v. Silver , Crim. No. 05-45 1-HFF (D.S.C. Sept. 19, 2005), aff'd in
part, vacated and remanded in part , 208 F. App’x 201 (4th Cir. 2006). The Court
of Appeals vacated my guideline sentence of fifty months, concluding that I failed
to rule on Defendant’s objection to a four-level increase in his offense level based
on the depiction of sadistic or other violent conduct.

Padilla v. Hanft , 389 F. Supp. 2d 678 (D.S.C. 2005), rev 'd, 423 F.3d 386 (4th Cir.
2005), motion to vacate denied, 432 F.3d 582 (4th Cir. 2005), cert, denied , 547
U.S. 1062 (2006). The Court of Appeals reversed my decision that Congress had
not authorized the detention of Petitioner and that the government must either
bring criminal charges against Petitioner or release him. Petitioner sought a writ
of certiorari from the Supreme Court. Thereafter, the Supreme Court granted the
government’s request to transfer Petitioner immediately out of military custody
and into federal civilian law enforcement custody, and denied as moot Petitioner’s
application for certiorari.

Stat e Court Cases

State v. Ballenger , 322 S.C. 196, 470 S.E.2d 851 (1996). The Court of Appeals
reversed me on a “throw down” drug case for failure to direct a verdict of
acquittal. The Supreme Court then reversed the Court of Appeals.

State v, Grovenstein , 335 S.C. 347, 517 S.E.2d 216 (1999). The Court of Appeals
reversed me on the procedure I used when it was discovered the alternate juror
was in the jury room during deliberations. The Supreme Court then reversed the
Court of Appeals. The case went back to the Court of Appeals on remand as to
other issues. The Court of Appeals reversed my application of the rape shield
statute. The case is cited in 340 S.C. 210, 530 S.E.2d 406 (Ct. App. 2000). The
Supreme Court granted certiorari to review that decision, but the parties resolved
the matter by agreement and withdrew the appeal before an opinion was issued.

State v. Brockman, 339 S.C. 57, 528 S.E.2d 661 (2000). The Court of Appeals
reversed me concerning the admission of drug evidence found in a moped within
the curtilage of Defendant’s mother’s home. The Supreme Court then reversed
the Court of Appeals.

Osteenv. Greenville County Sch. Dist., 323 S.C. 432, 475 S,E.2d 775 (1998).

The Court of Appeals reversed a workers’ compensation decision of mine dealing
with the application of the personal comfort doctrine. The Supreme Court then
reversed the Court of Appeals.

Hanahan v. Simpson, 326 S.C. 140, 485 S.E.2d 903 (1997). The Supreme Court
affirmed my handling of a wills contest but reversed my order of sanctions.

State v. Martin, 340 S.C. 597, 533 S.E.2d 572 (2000); State v. Wilson , 339 S.C.
491 , 530 S.E,2d 126 (2000). The Supreme Court reversed the convictions of two

32

49

defendants tried together in a murder case in front of me on the ground that I
should have directed a verdict of acquittal for both.

Stale v. Lynch, 344 S.C. 635, 545 S.E.2d 511 (2001). The Supreme Court
affirmed Defendant’s conviction of murder but reversed his conviction of
burglary on the ground that 1 allowed an improper amendment to the indictment.

Hill v. State , 350 S.C. 465, 567 S.E.2d 847 (2002). The Supreme Court reversed
my granting of post-conviction relief, concluding that, although I was right that an
erroneous charge was given, the Defendant suffered no prejudice.

Cooper v. State , 338 S.C. 202, 525 S.E.2d 886 (2000). The Supreme Court
reversed my holding that the statute of limitations in the PCR Act barred
Petitioner’s claim for relief.

State v. Fuller, 337 S.C. 236, 523 S.E.2d 168 (1999). The Supreme Court
reversed Defendant’s conviction for murder because I did not let Defendant
represent himself and because [ admitted accomplice testimony.

Gilmore v. State, 314 S.C. 453, 445 S.E.2d 454 (1994). The Supreme Court
reversed my decision that trial counsel was ineffective for failing to request that
the lesser included offense be charged and said counsel was not ineffective.

Cunningham v. Helping Hands, Inc., 352 S.C. 485, 575 S.E.2d 549 (2003). The
Supreme Court reversed my grant of summary judgment in favor of one defendant
based on assumption of the risk.

State v. Murphy, 322 S.C. 321, 471 S.E.2d 739 (Ct. App. 1996). The Court of
Appeals reversed Defendant’s conviction of intent to commit criminal sexual
conduct with a minor, holding that I should have charged assault of a high and
aggravated nature.

In re Breast Implant Prod. Liab. Litig., 331 S.C. 540, 503 S.E.2d 445 (1998). The
Supreme Court reversed my decision that the distribution of breast implants
constituted a sale under the Uniform Commercial Code rather than a service.

Re vis v. Almshouse and Auto-Owners Ins. Co. & Revisv. Almshouse, UPO, No.
94-UP-185 (S.C. Ct. App. 1994). In a pedestrian/auto accident, the Court of
Appeals affirmed me on the issue of whether the court had jurisdiction over the
auto owner but reversed on the finding that the court did not have jurisdiction
over the underinsured insurance carrier.

State v. Blassingame , UPO No. 94-UP-246 (S.C. Ct. App. 1994), rev 'd and
remanded. The trial judge sentenced Defendant, who was tried in absentia, and
sealed the sentence until Defendant could be located. Defendant was arrested,
and he was brought before me for sentencing. On appeal, some of the trial

33

50

judge’s rulings were reversed. In this case, I was performing only the duty of
imposing the sealed sentence in accordance with our procedure.

L, Rowland v. The Schafer Co, & J Rowland v. The Schafer Co., UPO No. 2000-
UP-259 (S.C. Ct. App. 2000). The Court of Appeals reversed my finding that
Rowland was a statutory employee under our workers’ compensation statute.

In the Matter of Millie Beeks: Rollison v. Beeks, UPO No. 95-UP-263 (S.C. Ct.
App. 1995). The Court of Appeals reversed my affirmation of the Probate
Judge’s decision appointing co-guardians and payment of attorney’s fees to the
guardians.

Rhodes v. McDonald , 345 S.C. 500, 548 S.E.2d 220 (Ct. App. 2001). The Court
of Appeals reversed my decision to allow the jury to award punitive damages in a
warranty action brought by a homeowner against a contractor.

Marty Mack, Employee v. Landmark Nissan, Employer, UPO No. 96-UP- 334
(S.C. Ct. App. 1996). The Court of Appeals reversed my decision that the
Workers Compensation Commission should not have denied benefits to Plaintiff.

Mullinax v. Bates, 3 1 7 S.C. 394, 453 S,E.2d 894 (1 995). The Supreme Court
reversed my ruling in a non-jury proceeding that Rule 1 3 of South Carolina Rules
of Civil Procedure regarding compulsory counterclaims barred Appellant’s claim.

State v. Proctor , 345 S.C. 299, 546 S.E.2d 673 (Ct. App. 2001). The Court of
Appeals reversed my revocation of the Appellant’s probation, holding that his
adult probation case did not begin until he completed his youthful offender parole.

Sullivan v. Mayfield & Mattison v. Mayfield & VanAllen v. Mayfield, UPO No,
96-UP-265 (S.C. Ct. App. 1996). The Court of Appeals reversed my granting of
summary judgment in an automobile negligence case.

Ex parte Foster, 350 S.C. 238, 565, S.E.2d 290 (2002). The Supreme Court
remanded on the ground that I did not make enough findings that the defendant in
a civil forfeiture action was entitled to an appointed Guardian Ad Litem.

The Jay Group, LTD v. The Bootery of Haywood Mall, 335 S.C. 1 14, 515 S.E.2d
542 (Ct. App. 1999). The Court of Appeals disagreed with my holding that a
North Carolina judgment was entitled to full faith and credit in South Carolina.

De Bondt v. Carlton Motorcars. Inc , 342 S.C. 254, 536 S.E.2d 399 (Ct. App.
2000). In a case involving the purchase of an automobile, the Court of Appeals
reversed me on the granting of summary judgment as to the Unfair Trade
Practices Act and Manufacturers and Dealers Act.

34

51

Slate v. Evans , 343 S.C. 685, 541 S.E.2d 852 (Ct, App. 2001), rev 'd, 354 S.C.

579, 582 S.E.2d 407 (2003). The Court of Appeals held that I identified the
appropriate objective standard of custody in evaluating a Miranda issue, but
reversed me because I made additional remarks about her mental situation, which
caused the court to believe that I might have been using a subjective standard.

The Supreme Court then reversed the Court of Appeals.

State v. Fletcher, 363 S.C. 221, 609 S.E.2d 572 (Ct. App. 2005), rev 'd, 379 S.C.
17, 664 S.E.2d 480 (2008). The South Carolina Supreme Court reversed my
decision to admit character evidence.

State v. Laney, 367 S.C. 639, 627 S.E.2d 726 (2006). In this death penalty case,
the Supreme Court reversed my instruction at the sentencing phase as error
because the State offered evidence of Defendant’s future dangerousness and I had
failed to instruct the jury that a sentence of life imprisonment meant a sentence of
life without parole.

State v. Cobh, 349 S.C. 126,561 S.E.2d 631 (Ct. App. 2002), rev ’d, 355 S.C. 98,
584 S.E.2d 371 (2003). The South Carolina Supreme Court reversed my
sentencing Defendant to twenty years in prison on the ground that I should have
sentenced him under South Carolina’s accommodation statute.

State v. James, 346 S.C. 303, 551 S.E.2d 591 (Ct. App. 2001), rev 'd, 355 S.C. 25,
583 S.E.2d 745 (2003). The South Carolina Supreme Court reversed my
sentencing Defendant to life in prison, holding that I erred by admitting evidence
of seven of Defendant’s prior burglary convictions when the statute requires proof
of only “two or more” prior convictions to establish first degree burglary.

Tennis v. S.C. Dep’tofSoc. Servs., 355 S.C. 551, 585 S.E.2d 312 (Ct. App. 2003).
The Court of Appeals reversed my affirming the Department of Social Services’
denial of Plaintiff s application to renew' her license to operate a day care facility.

Sheppard v. Slate, 357 S.C. 646, 594 S.E.2d 462 (2004). The Supreme Court
disagreed with my holding that Petitioner had voluntarily waived his right to a
direct appeal and granted him a belated appeal, but affirmed his conviction.

Austin v. State, 352 S.C. 473, 575 S.E.2d 547 (2003). The Supreme Court
reversed my finding that the family court could transfer the charge of possession
of a firearm during the commission of a violent crime to the circuit court.

Tilley v. Pacesetter Corp., 333 S.C. 33, 508 S.E.2d 16 (1998). The Supreme
Court affirmed my judgment in its result in a South Carolina Consumer Protection
action but held the applicable statute of limitations to be three years, not one year
like I had found.

35

52

Cowburn v. Levenlis , 366 S.C. 20, 619 S.E,2d 437 (2005). In this action, an
investor in what turned out to be a Ponzi scheme sued a bank and an attorney for
the losses that he suffered. The Court of Appeals affirmed my decision to grant
summary judgment for both the bank and the attorney, except on the issue of the
attorney’s alleged violation of the South Carolina Uniform Securities Act.

Russel! v. Wachovia Bank , 370 S.C. 5, 633 S.E.2d 722 (2006). The Supreme
Court reversed my finding that the no-contest clauses in a will were
unenforceable, upheld my imposition of sanctions against one of the children, and
reversed my conclusion that one of the motions for sanctions was untimely.

g. Provide a description of the number and percentage of your decisions in which
you issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored.

As a district judge, almost all (99%) of my opinions are “unpublished” in the
sense that they fail to appear in the Federal Supplement. I rarely ask to have an
opinion published, but, occasionally, the Federal Supplement will select one of
my opinions for publication. However, a majority of my opinions are
electronically published through Lexis and WestLaw. In fact, I would estimate
that approximately 90% of my final orders are electronically published in this
manner.

It is my understanding that the electronic databases do not publish most pre-trial,
non-dispositive orders such as discovery and procedural orders. Further,
according to them, they do not publish orders that are not released by the Clerk of
Court’s office. For an opinion to be released, the electronic filer (whether it be
someone in my chambers or someone in the Clerk’s office) must indicate that the
opinion constitutes a written opinion. Occasionally, the filing user inadvertently
fails to indicate as such. I estimate that 1 have written approximately 70 opinions
that should have been classified as written opinions but were not. Each of these
orders, along with thousands of pre-trial orders, is available through the District of
South Carolina’s electronic filing system, ECF.

h. Provide citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, provide copies of the opinions.

IJ.S. Court of App e als for t he Fourth Circuit, sitting bv designation

United States v. Schaffer , No. 07-4187, 286 F. App’x 81 (4th Cir. July 3, 2008).

Walker v. Kelly, No. 04-22, 195 F. App’x 169 (4th Cir. Aug. 24, 2006).

36

53

District Court Cases

Padilla v. Hanfl , 389 F, Supp. 2d 678 (D.S.C. 2005), rev 'd, 423 F,3d 386 (4th Cir.
2005), motion to vacate denied, 432 F.3d 582 (4th Cir. 2005), cerl. denied , 547
U.S. 1062(2006).

Al-Marri v. Wright , 443 F. Supp. 2d 774 (D.S.C. 2006), rev’rf, 487 F.3d 160 (4th
Cir. 2007), rev’d en banc, Al-Marri v. Pucciarelli, 534 F,3d 213 (4th Cir. 2008),
vacated by Al-Marri v. Spagone, 129 S. Ct. 1545 (2009).

Sta te Court Cases

Diamonds v. Greenville County, No. 95-CP-23-2144, ajf d, 325 S.C. 154, 480
S.E.2d 718 (1997).

Provide citations to all cases in which you sat by designation on a federal court of
appeals, including a brief summary of any opinions you authored, whether
majority, dissenting, or concurring, and any dissenting opinions you joined.

Opinions Authored, U.S. Court of Appeals for the Fourth Circuit

United Stales v. Schaffer, No. 07-4187, 286 F. App’x 81 (4th Cir. July 3, 2008)

(Floyd, J.). In this criminal appeal. Defendant challenged the admissibility
of evidence seized during a warrantless search of his residence. We
concluded that exigent circumstances existed to justify a warrantless
search of the home and, thereby, affirmed the district court’s decision to
admit the evidence seized. More specifically, the evidence established
that the officers who conducted the search reasonably believed that
Defendant had a gun and he may have been inside the house, posing a
danger to the officers and Defendant’s wife.

Schweikert v. Bank of Am., N.A . , 521 F.3d 285 (4th Cir. 2008) (Floyd, J,). This
was an employment case brought by a former bank vice president against
his former employer. The district court dismissed the case on the grounds
that Plaintiffs action was preempted by the National Bank Act (NBA).

We agreed and held that the NBA preempted state law claims for wrongful
discharge of bank officers.

Hussain v. Gonzales, 477 F.3d 1 53 (4th Cir. 2007) (Floyd, J.). This was an

immigration case in which I denied Petitioner’s petition for review of an
order from the Board of Immigration Appeals (Board), which denied his
appeal from an immigration judge’s order. The sole issue was the
question of remand and whether it was properly addressed by the Board.

37

54

We concluded that the Board failed to address the motion to remand, but,
on the merits. Petitioner was statutorily prohibited from receiving an
adjustment in his immigration status because he entered the country
illegally.

Newport News Shipbuilding & Dry Dock Co. v. Dir., Office of Workers ’ Comp.
Programs, 477 F.3d 1 23 (4th Cir. 2007) (Floyd, J.), This case reviewed
an award of attorney’s fees under the Longshore and Harbor Workers’
Compensation Act. Applying the statutory language, we agreed with the
district court that attorney’s fees for Plaintiffs counsel were justified
because Plaintiff obtained greater compensation by litigating the case.

Newport News Shipbuilding & Dry Dock Co. v. Young , No. 05-1 78 1, 199 F.

App’x 274 (4th Cir. Sept. 8, 2006) (Floyd, J.). This case involved a claim
for benefits under the Longshore and Harbor Workers’ Compensation Act.
The Benefits Review Board awarded Plaintiff benefits, and we affirmed
the award of those benefits, concluding that the Board’s decision was
supported by substantial evidence.

Walker v. Kelly, No. 04-22, 195 F. App’x 169 (4th Cir. Aug. 24, 2006) (Floyd, J.).
This was an appeal from the denial of federal habeas relief under 28
U.S.C. § 2254. The issue before the court was whether Petitioner had
shown cause and prejudice sufficient to overcome the procedural default
of his Brady claim. Applying the Strickler factors, we concluded that he
had shown cause for the procedural default. Moreover, Petitioner
demonstrated prejudice from the procedural default because the evidence
that the State failed to disclose undermined the testimony of the State’s
only eyewitness. Thus, had the evidence been disclosed and admitted, it
may have changed the jury’s verdict.

Locklear v. Bergman & BevingAB , 457 F.3d 363 (4th Cir. 2006) (Floyd, J.). In
this products liability action. Plaintiff sought to amend his complaint and
change the name of the defendant manufacturer after the statute of
limitations had run. The issue on appeal was whether the amended
complaint, filed during a court-ordered extension of the time for service,
related back to the original complaint under what is now Federal Rule of
Civil Procedure 15(c)(1)(C). We agreed with the district court that it did
not relate back because Plaintiffs failure to include the proper defendant
was not a “mistake” in that Plaintiff learned of the proper manufacturer
eight months after filing the lawsuit.

Simms v. Mut. Benefit Ins. Co., No. 03-2452, 137 F. App’x 594 (4th Cir. June 30,
2005) (Floyd, J.). Defendant insurance company challenged a trial court’s
evidentiary decision to exclude evidence of Plaintiffs financial condition
on the ground that it was more prejudicial than probative under Rule 403.
Reviewing for abuse of discretion, we agreed with the trial court’s

38

55

decision to exclude the evidence because it could have confused the jury
about the issues of the case and extremely prejudiced Plaintiff. Defendant
also challenged the trial court’s jury instruction that it had to prove its
affirmative defense by clear and convincing evidence. Applying
Maryland law, we disagreed with Defendant and affirmed the trial court’s
decision.

Opinions Joined, U.S. Court of Appeals for the Fourth Circuit

United States v. Branch, 537 F.3d 328 (4th Cir. 2008).

United States v. Jones, No. 06-4889, 289 F. App’x 593 (4th Cir. Aug. 20, 2008).

United States v. Henry, 538 F.3d 300 (4th Cir. 2008).

Westmoreland Coal Co. v Amick, No. 06-2172, 289 F. App’x 638 (4th Cir. Aug.
18,2008).

Iko v. Shreve, 535 F.3d 225 (4th Cir. 2008).

Charlie Norfolk Ctr. Assocs., L.P. v. Norfolk Redevelopment <6 Hous. Auth., No.
07-1571, 285 F. App’x 80 (4th Cir. July 1, 2008).

United States v. Bradshaw, No. 07-4465, 282 F. App’x 264 (4th Cir. June 24,
2008).

United States v. Anderson, Nos. 07-4303, 07-4304, 282 F. App’x 255 (4th
Cir. June 20, 2008).

Flaherty v. Legum & Norman Realty, Inc., No. 07-1507, 281 F. App’x 232 (4th
Cir. June 1 1, 2008).

Scott v. Lumbee River Elec. Mbrshp. Corp., No. 07-1 169, 286 F. App’x 27 (4th
Cir. June 10, 2008).

United States v. Hassan , No. 07-4602, 280 F. App’x 271 (4th Cir. June 6, 2008).

United Stales v. Kuai Li, No. 07-4559, 280 F. App’x 267 (4th Cir. June 6, 2008).

United States v. Moran, No. 07-4312, 280 F. App’x 302 (4th Cir. June 4, 2008).

United States v. Black, 525 F.3d 359 (4th Cir. 2008),

Barnhill v. Veneman (In re Peanut Crop Ins. Lilig.), 524 F.3d 458 (4th Cir. 2008).

United States v. Bodkins, Nos. 06-4647, 06-4652, 274 F. App’x 294 (4th Cir. Apr.
18,2008).

Beckner v. Am. Benefit Corp., No. 07-1225, 273 F. App’x 226 (Apr. 10, 2008).

Barbe v. McBride, 521 F.3d 443 (4th Cir. 2008).

Kennedy v. Joy Techs., Inc., No. 06-2307, 269 F. App’x 302 (4th Cir. Mar. 12,
2008).

United States v. Reyes Go, 517 F.3d 216 (4th Cir. 2008).

United States v. Wallace, 515 F.3d 327 (4th Cir. 2008).

EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008).

Darveau v. Detecon, Inc., 515 F.3d 334 (4th Cir. 2008).

Parts Depot, Inc. v. NLRB, Nos. 07-1 178, 07-1290, 260 F. App’x 607 (4th Cir.
Jan. 7, 2008).

HyangKyu Smart v. Mukasey, No. 06-1468, 258 F. App’x 622 (4th Cir. Dec. 19,
2007).

Wirba v, Mukasey, No. 06-1719, 257 F. App’x 619 (4th Cir. Dec. 14, 2007).

39

56

United Slates v. Uhrich, Nos. 05-4486, 05-4487, 05-4490, 228 F. App’x 248 (4th
Cir. June 1, 2007).

White v, Sun Life Assur. Co., 488 F.3d 240 (4th Cir. 2007).

United States v. Godsey , No. 06-4243, 214 F. App’x 274 (4th Cir. Jan. 24, 2007).
Wes! Virginia v. Thompson, 475 F.3d 204 (4th Cir. 2007).

Gross v. SES Americom, Inc., No. 05-2304, 213 F. App’x 166 (4th Cir. Jan. 1 1,
2007).

Pension Benefit Guar. Corp. v. United Airlines, Inc., No. 05-2375, 2007 U.S.

App. LEXIS 401, 39 Employee Benefits Cas. (BNA) 2741 (4th Cir. Jan. 9,
2007).

Jani v. Bert Bell/Pete Roselle NFL Player Ret. Plan, No. 05-2386, 209 F. App’x
305 (4th Cir. Dec. 13,2006).

United States v. Chapman, No. 04-5010, 209 F. App’x 253 (4th Cir. Dec. 8,

2006).

Board of Trs. v. BES Servs., 469 F.3d 369 (4th Cir. 2006).

Briggs v. Marriott Int'l, Inc., No. 05-1616, 205 F. App’x 183 (4th Cir. Nov. 28,
2006).

Buchbinder v. Natanzon, No. 06-1078, 205 F. App’x 984 (4th Cir. Nov. 16,

2006).

United States v. Carpenter, No. 06-4027, 204 F. App’x 260 (4th Cir. Oct. 1 9,
2006).

Hyman v. City of Gastonia, 466 F.3d 284 (4th Cir. 2006).

United States v. Evans, No. 06-4480, 1 99 F. App’x 290 (4th Cir. Sept. 12, 2006).
Rux v. Republic of Sudan, 461 F.3d 461 (4th Cir. 2006).

Cowan Sys. v. Harleysville Mut. Ins. Co., 457 F.3d 368 (4th Cir. 2006).

Naizgi v. Gonzales, 455 F.3d 484 (4th Cir. 2006).

First Penn-Pac. Life Ins. Co. v. William R. Evans, Chid., No. 05-1336, 193 F.
App’x 221 (4th Cir. July 14, 2006).

Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292 (4th Cir. 2006).

United States v. Isom, No. 03-4960, 138 F. App’x 574 (4th Cir. July 12, 2005).
Logan v. JKV Real Estate Servs. (In re Bogdan), 414 F.3d 507 (4th Cir. 2005).
TNT Logistics ofN. Am., Inc. v. NLRB, 413 F.3d 402 (4th Cir. 2005).

Trowell v. Beeler, No. 04-6531, 135 F. App’x 590 (4th Cir. May 19, 2005).
Lambeth v, Bd. of Comm ’rs, 407 F.3d 266 (4th Cir. 2005).

Slade v. Hampton Rds. Reg 'I Jail , 407 F.3d 243 (4th Cir. 2005).

Mid Atl. Med. Servs., LLC v. Sereboff 407 F.3d 212 (4th Cir. 2005).

United Stales v. Bush, 404 F.3d 263 (4th Cir. 2005).

United States v. Evans, 404 F.3d 227 (4th Cir. 2005).

Chaplin v, Du Pont Advance Fiber Sys., Nos. 04-1469, 04-1471, 124 F. App’x
771 (4th Cir. Mar. 10,2005).

United States v. Woolfolk, 399 F.3d 590 (4th Cir. 2005).

Devan v. Phoenix Am. Life Ins. Co. (In re Merry-Go-Round Enters.), 400 F.3d
219 (4th Cir. 2005).

Talton v. I.H. Caffey Distrib. Co., No. 04-1652, 124 F. App’x 760 (4th Cir. Jan.
18, 2005).

40

57

14. Recusal: If you are or have been a judge, identify the basis by which you have assessed
the necessity or propriety of recusal (If your court employs an “automatic” recusal system
by which you may be recused without your knowledge, please include a general
description of that system.) Provide a list of any cases, motions or matters that have
come before you in which a litigant or party has requested that you recuse yourself due to
an asserted conflict of interest or in which you have recused yourself sua sponte. Identify
each such case, and for each provide the following information:

a. whether your recusal was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any other person or interested party; or if you
recused yourself sua sponte;

b. a brief description of the asserted conflict of interest or other ground for recusal;

c. the procedure you followed in determining whether or not to recuse yourself;

d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any
other ground for recusal.

In determining whether to recuse myself from presiding over a matter, 1 base my
decision on whether one with knowledge of the relevant facts might reasonably
question my impartiality.

The Clerk of Court employs a computer program that randomly assigns cases to the
various district judges in this district. When one of these assignments is made to me,
the Clerk manually checks the names of the parties against the recusal list that I have
submitted. If there is a match, then the case is reassigned without my knowledge that
I was initially chosen to preside over the particular matter.

Below is a list of the cases that I have recused myself or refused to recuse myself and
the reason for my decision:

Smith v. Smith, No. 0:07-CV-00275-HFF

In this action, Plaintiff accused me of an abuse of discretion and of judicial
misconduct. He failed to set forth any specific allegations. Having considered the
motion, I found that there was no factual or legal basis that would make the granting
of the motion proper.

United Slates v. Miller, No. 6:04-CR-00022-HFF, 6:06-CV-00548-HFF
Defendant/Movant has made repeated conclusory allegations of my misconduct and
racial bias against him. Simply stated, he has been unhappy with my rulings against
him, which have repeatedly been affirmed by the Court of Appeals. Having
considered his arguments, I have declined to grant his requests for recusal.

41

58

Smith v. Harrison, No. 6:04-CV-0 i 1 88

Plaintiff stated that I was unable to adjudicate his case impartially and thus he wished
for me to recuse myself from his case. He failed, however, to give any rationale for
his assertion. I denied his motion.

United States v. Jones , No. 6:06-CR-00398-HFF, 6:06-CV-02427
Petitioner moved that the Chief Judge of the district remove me from this case and
reassign someone else. He intimated that I was unable to reach a fair, unbiased and
impartial judgment. He set forth no basis for his accusation. Consequently, I denied
his requested relief.

Woodv. Wieder, 7:09-CV-03178

Plaintiff in this case is being represented by a very good friend of mine, Scott Dover.
When I realized that I had been assigned the case, I contacted the Clerk to inform her
that I wanted the case to be reassigned to another judge inasmuch as my impartiality
in the case might be reasonably questioned.

Wise v. Slate, 6:09-cv-01361-HFF

In this action. Petitioner requested that I be disqualified from considering his case but
gave absolutely no basis for such disqualification. The motion was denied as
meritless.

Child Evangelism v. Anderson Sch. Dist., 8:04-cv-01866

This action involved a suit against a religious organization suing a school district over
the use of some of the school district’s facilities. Inasmuch as my wife was, at the
time, in the administration of a neighboring school district, I thought that it would be
prudent to inform the parties of that fact and inquire as to whether they preferred that
I remove myself from the case. Inasmuch as Plaintiff requested that the case be
reassigned, I agreed and directed the Clerk to reassign the case.

Blackwell v. Suntrust Bank, 7:08-cv-04 125

This was a putative class action. In that I have two savings accounts with Defendant,

I decided to inform the parties of that fact and to inquire as to whether they would
consent to my presiding over the matter or if they would prefer that the case be
reassigned. Defendant asked that we reassign the case. In light of the fact that,
according to Defendant, I might have had personal knowledge of central issues in
dispute in this case, which could result in my impartiality being reasonably
questioned, I recused myself from this case.

Penland v. United States District Court, 6:07-cv-03284-HMH
In this action, Plaintiff sued the United States District Court and specifically accused
me of wrongdoing. In light of this suit, I recused myself from further consideration
of this action, along with several other civil actions that Plaintiff filed against various
parties.

42

59

S.C, Advisory Comm, on Standards of Judicial Conduct, Op. 7-1995 (1995).

The Advisory Committee on Standards of Judicial Conduct handed down this
advisory opinion during the time that I was a member. The Committee issued
advisory opinions regarding ethical questions presented by judges. The question
presented concerned the propriety of a judge accepting a prize raffled off at the
Judicial Golf Classic. I did not participate in this advisory opinion because I was the
judge who submitted the question.

S.C. Advisory Comm, on Standards of Judicial Conduct, Op. 5-1996 (1996).

The Advisory Committee on Standards of Judicial Conduct handed down this
advisory opinion during the time that I was a member. The Committee issued
advisory opinions regarding ethical questions presented by judges. The question
presented concerned the propriety of individual members of the Family Court, the
Circuit Court, the Court of Appeals, and the Supreme Court sponsoring a barbeque
for the South Carolina General Assembly and Staff. 1 did not participate in this
advisory opinion because I was the judge who submitted the question.

S.C. Advisory Comm, on Standards of Judicial Conduct, Op. 2-1997 (1996).

The Advisory Committee on Standards of Judicial Conduct handed down this
advisory opinion during the time that 1 was a member. The Committee issued
advisory opinions regarding ethical questions presented by judges. The question
presented concerned the propriety of a circuit court judge becoming a member of a
fraternal organization of former members of the South Carolina General Assembly. I
did not participate in this advisory opinion because 1 was both a circuit court judge
and former member of the South Carolina General Assembly.

1 5. Public Office, Political Activities and Affiliations :

a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, state chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.

From 1972 to 1978, 1 served in the South Carolina House of Representatives
representing District 3. 1 was elected to three terms.

From 1973 to 1976, 1 was a member of the Appalachian Region Council of
Governments, appointed by the Legislative delegation from Pickens County.

From 1978 to 1990, 1 was a Commissioner on the South Carolina Forestry
Commission, appointed by Governor Richard W. Riley.

From 1986 to 1992, 1 served as attorney for Pickens County, having been
appointed by Pickens County Council (while continuing in my full-time partner
status at Acker, Acker, Floyd & Welmaker, P.A.).

43

60

In 1981, 1 ran unsuccessfully for the South Carolina Senate.

I have had no unsuccessful nominations for appointed office.

b. List all memberships and offices held in and services rendered, whether

compensated or not, to any political party or election committee. If you have ever
held a position or played a role in a political campaign, identify the particulars of
the campaign, including the candidate, dates of the campaign, your title and
responsibilities.

In the 1970’s, I served a term on the South Carolina Democratic Party Executive
Committee.

In 1976, 1 was on the advisory committee for Charles “Pug” Ravenel, who was
running for Governor of South Carolina.

I was an assistant to Earle E. Morris, Jr., candidate for Lt. Governor of South
Carolina during his campaign in 1970. I acted as his driver and
messenger/scheduler.

16. Legal Career: Answer each part separately.

a. Describe chronologically your law practice and legal experience after graduation
from law school including:

i. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;

I did not serve as a clerk to a judge.

ii. whether you practiced alone, and if so, the addresses and dates;

From 1973 to 1974, 1 was a solo practitioner in Pickens, South Carolina.
My office address was 208 Garvin Street, Pickens, South Carolina 2967 1 .

iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.

1974-1977

Floyd & Welmaker, P. A.

Attorneys at Law
208 Garvin Street
Pickens, South Carolina 29671
Partner

44

61

1978- 1992

Acker, Acker, Floyd & Welmaker, P.A.

Attorneys at Law
603 South Lewis Street
Pickens, South Carolina 29671
Partner

iv, whether you served as a mediator or arbitrator in alternative dispute

resolution proceedings and, if so, a description of the 1 0 most significant
matters with which you were involved in that capacity,

I have never served as a mediator or an arbitrator.

b. Describe:

i. the general character of your law practice and indicate by date when its
character has changed over the years.

Initially, the firm of Floyd & Welmaker was predominantly involved in
civil, criminal, and domestic litigation with the general office practices of
deeds, wills, estates, and real property closings. When the firms were
merged in 1978, Acker & Acker was predominantly a firm involved in
property, probate, trust, and commercial activities. As we entered into the
merger, eventually there was a division of the labor among the partners,
and I continued primarily in the litigation areas of civil, criminal, and
domestic relations. However, I was more involved in probate litigation
and real property litigation, and, on a smaller scale, I continued the general
“walk-in” traffic of wills, deeds, and contracts. I also represented some
regulated utilities, municipalities, the County of Pickens, and an electric
cooperative. Essentially, my practice remained the same from 1978 until
1992 at which time I was elected as a State Circuit Court judge.

ii. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.

Pickens is a relatively small city in a relatively rural county and our
typical clientele included general working people wilh everyday problems
from criminal charges, domestic relations disputes, and routine civil
disputes. The firm also represented some lending institutions,
municipalities, and the County. We also participated in bond issues and
corporate sales. I did not specialize in any particular areas of practice.

c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.

45

62

I appeared in court frequently, and the frequency of my appearances in court
remained fairly stable during my entire career as a lawyer.

i. Indicate the percentage of your practice in:

1.

federal courts:

2%

2.

state courts of record:

80%

3.

other courts:

18%

4.

administrative agencies:

0%

ii. Indicate the percentage of your practice in:

1 .

civil proceedings:

65%

2.

criminal proceedings:

35%

d. State the number of cases in courts of record, including cases before
administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.

Over an eighteen year period, I estimate that I tried approximately 400 cases to
verdict or judgment in courts of record. I estimate that 95% of the time i was
either chief or sole counsel.

i. What percentage of these trials were:

1. jury: 50%

2. non-jury: 50%

e. Describe your practice, if any, before the Supreme Court of the United States.

Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any oral

argument transcripts before the Supreme Court in connection with your practice.

I have not practiced before the Supreme Court of the United States.

17. Litigation : Describe the ten (10) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give a capsule summary of
the substance of each case. Identify the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case:

a. the date of representation;

b. the name of the court and the name of the judge or judges before whom the case
was litigated; and

46

63

c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.

1. Stale v. Cox, No. A83-9248 (13th Cir. Ct. Gen. Sessions 1983), rev'd, 335 S,E.2d
809, 287 S.C. 260 (Ct. App. 1985) (Moore, Paul, Special Circuit Judge, presiding and
McFadden, Robert L., presiding over retrial). This was the first capital murder case
tried in Pickens County after reinstitution of the death penalty. It was a murder-for-
hire case. In the first trial, during June of 1 983, 1 was appointed to assist the Public
Defender, J. Redmond Coyle of Pickens, South Carolina (deceased). Defendant was
convicted, and the jury recommended a life sentence. On appeal, the conviction was
reversed and remanded for a new trial. Upon retrial in 1987, Defendant’s family
retained me and the jury acquitted Defendant.

Representing the State in the first trial was William B. Traxler, Jr., then Solicitor for
the Thirteenth Judicial Circuit, now Chief Judge of the U.S. Court of Appeals for the
Fourth Circuit, currently at 300 East Washington Street, Suite 222, Greenville, South
Carolina 29603, (864) 241-2730. Representing the State in the second trial was
Benjamin T. Stepp, then Assistant Solicitor for the Thirteenth Judicial Circuit, now
Assistant Federal Public Defender, 501 East McBee Avenue, Suite 202, Greenville,
South Carolina 29601, (864) 235-8714.

2. State v. Crunkleton, No. 90-GS-37-1 179 (10th Cir. Ct. Gen. Sessions 1991) (Brown,
Luke, presiding). This case was tried in March of 1991 and it arose out of
manslaughter charges against my client as a result of an attack by Defendant’s part Pit
Bull, part Rottweiler dog upon a five-year-old child who was mauled and killed by
the dog. The jury acquitted Defendant.

Prosecuting the case was Tommy B. Edwards, then Assistant Solicitor for the Tenth
Judicial Circuit, now Family Court Judge for the Tenth Judicial Circuit, P.O. Box
8002, Anderson, South Carolina 29622, (864) 260-4040.

3. Giles v. Lanford & Gibson, Inc. (13th Cir. Common Pleas 1981) (Eppes, Frank,
presiding), aff'd , 328 S.E.2d 916, 285 S.C. 285 (Cl. App. 1985). I represented
Defendant Giles in this case, involving the use of the theory of constructive fraud in
which a Plaintiff does not have to prove intent to recover under a cause of action in
fraud. Plaintiff was a homeowner with a builder’s risk policy who claimed his agent
misled him as to the effect of coverage. The jury awarded Plaintiff $25,000 in
damages. I represented Defendant from approximately May 1981 through June 1985.

Opposing counsel in this matter was Herman E. Cox, 1 1 5 Broadus Avenue,
Greenville, South Carolina, 29601 (864) 242-4711.

4. Blue Ridge Elec. Coop., Inc. v. Combined Util. Sys. of the City of Easley (13th Cir.
Common Pleas 1981) (Sparks, James and Board, Joseph, presiding), aff’d , 303 S.E.2d
91, 279 S.C. 135 (1983). I represented Plaintiff, Blue Ridge Electric Cooperative, in
this declaratory judgment action challenging the constitutionality of a South Carolina

47

64

eminent domain statute. The statute provides for electric utility acquisition of electric
cooperative property upon payment of just compensation. The court held that the
statutory formula used to compute the cooperative’s just compensation was
constitutional as long as it was construed as a minimum and not a limitation.

Opposing counsel were J.D. Todd, Jr. (retired), 300 East McBee Avenue, Suite 500,
Greenville, South Carolina 29601, (864) 242-6440, and Felix L. Finley, Jr., Pickens,
South Carolina (deceased).

5. Hayes v. Tompkins (13th Cir. Common Pleas 1982) (Cureton, Robert, presiding),
aff'd , 337 S.E.2d 888, 287 S.C. 289 (Ct. App. 1985). This case involved an implied
easement of necessity under South Carolina law wherein I represented Defendants.
The case was tried and the lower court held there was an implied easement of
necessity, which was favorable to Plaintiff, and also found that there was a right of
apportionment of maintenance costs, which was in favor of Defendants. Both sides
appealed, and each side lost their respective appeals. The decision as outlined above
remained in effect. The value of this case is that for the first time an appellate court
of South Carolina announced that apportionment of costs can be an equitable remedy
notwithstanding an agreement between the parties. I represented these clients from
approximately June 1982 through 1985.

Opposing counsel in this case was Felix L. Finley, Jr., Pickens, South Carolina
(deceased).

6. State v. Spearman , No. 84-GS-39-142 (13th Cir. General Sessions 1984) (Eppes,
Frank, presiding). This is the second death penalty case tried in Pickens County after
the reinstitution of the death penalty in South Carolina. I represented Defendant
Spearman. Defendant was charged with murder and the aggravating circumstance of
armed robbery. Our objective in this case was to avoid the death penalty because the
evidence clearly showed that he was guilty of murder and armed robbery. The jury
became deadlocked and so the trial judge imposed a life sentence. I represented
Defendant from approximately June 1 983 through April 1 984.

Co-counsel was J. Redmond Coyle of Pickens, South Carolina (deceased).

Prosecuting the case was William B. Traxler, Jr. then Solicitor for the Thirteenth
Judicial Circuit, now Chief Judge for the Fourth Circuit Court of Appeals, currently at
300 East Washington Street, Suite 222, Greenville, South Carolina 29603, (864) 241-
2730.

7. Parrish v. Gilslrap (1 3th Cir. Common Pleas 1 980) (Hall, Stuart, presiding), aff'd,
312 S.E.2d 4, 280 S.C. 184 (1984). I represented Plaintiff Parrish from June 1980
through May 1984. The Appropriations Act of the South Carolina General Assembly
for 1 979-80 mandatorily provided for a sum certain for the benefit of each county
probate judge. Pickens County refused to comply with the statute and a writ of
mandamus was sought and granted. On appeal, the decision was affirmed.

48

65

Opposing counsel in this case was Felix L. Finley, Jr., Pickens, South Carolina
(deceased).

8. Stale v. Morgan (13th Cir. Gen. Sessions 1 982) (Pyle, Victor, presiding), affd , 319
S.E.2d 335, 282 S.C. 409 (1985). I represented Defendant Morgan from November
1982 through June 1985. This case is significant for DUI practitioners because the
Court clearly established the rules regarding how and when to raise the issue of
corpus delicti, vis a vis custodial/non-custodial statements made during a routine
traffic accident investigation. It also clarified the application of Miranda warnings as
well as the extent to which a trial judge can charge the jury upon the issue of a
statement rendered by an intoxicated person.

Prosecuting this case was O. Warren Mowry, Jr, then Assistant Solicitor for the
Thirteenth Judicial Circuit, now at 25 Augusta Court, Greenville, South Carolina
29605,(864)232-8125.

9. State v. Holcombe , No. 79-GS-37-244 (10th Cir. Gen. Sessions 1979) (Ballenger,
Howard, presiding). I represented Defendant Holcombe, who was charged and
convicted under the theory of transferred intent for the murder of a 4-year-old girl.

The State’s theory was that he was intending to kill the husband of his lover. This was
being tried during the development of the law of burden shifting immediately
following the Supreme Court’s Sandstrom v. Montana decision. Burden shifting
issues were raised, but the South Carolina Supreme Court summarily denied the
appeal and the Supreme Court refused to grant certiorari. I represented Defendant
from approximately January 1979 through November 1980.

Prosecuting this case were Henry Raines, then Solicitor for the Tenth Judicial Circuit
(deceased) and John Fields, then Assistant Solicitor for the Tenth Judicial Circuit,
now at 10 Commons Boulevard, Seneca, South Carolina 29678, (864) 882-1812.

10. Culler v. Blue Ridge Elec. Coop. (13th Cir. Common Pleas) (Simmons, Charles,
presiding), affd, 422 S.E.2d 91, 309 S.C. 243 (1992). This is a case alleging
wrongful discharge brought by the employee. Plaintiff Culler, against my client. Blue
Ridge Electric Cooperative. The employee alleged that he was discharged for failure
to contribute to Defendant’s political action committee. However, at trial the
evidence proved to the contrary, and the Supreme Court affirmed the lower court.

This case is significant because it was one in a line of cases that helped develop the
law of at-will employment in South Carolina and where the courts will allow tort
actions notwithstanding the at-will employment doctrine.

Co-counsel was G. Edward Welmaker, then my law partner, now Circuit Court Judge
for the Thirteenth Judicial Circuit, Pickens County Courthouse, Pickens, South
Carolina 29671, (864) 898-5791. Opposing counsel was Hal J. Warlick, Pickens,
South Carolina (deceased).

49

66

18. Legal Activities : Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organization(s) for whom you performed lobbying activities and describe
the lobbying activities you performed on behalf of such client(s) or organizations(s).
(Note: As to any facts requested in this question, please omit any information protected
by the attorney-client privilege.)

For a few years, I served on the Board of Commissioners on Grievances and Discipline,
which was empowered to deal with complaints against members of the Bar in this State
and to make certain recommendations for disciplinary conduct. I also participated in
negotiations regarding assignment of utility territory and negotiations concerning the
acquisition of property for major water and utility lines. As county attorney, I was
involved in the issuance of revenue and general obligation bonds. Also, I was
responsible for guiding the County Council through Freedom of Information Act requests
and discussions of appropriate areas for the enactment of ordinances.

While a State judge, I was also a member of the Commission on Judicial Conduct. This
Commission dealt with complaints against judges by reviewing and making
recommendations to the South Carolina Supreme Court. For the last four years, I have
served on the Judicial Resources Committee for the Judicial Conference of the United
States and continue in that capacity. We are charged with overseeing personnel policies
and management of judicial resources.

During the years 1979 and 1980 I was a lobbyist for Sherman College of Straight
Chiropractic. 1 lobbied for the expansion of the ability of straight chiropractors in this
State to practice their vocation.

19. Teaching : What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.

I have not taught any courses.

20. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest.

Currently, I am drawing my retirement income from the South Carolina Judges and
Solicitors’ retirement system. My wife is still actively employed with the School
District of Pickens County but upon retirement expects to receive South Carolina
Retirement System income.

50

67

21. Outside Commitments During Court .Serv ice : Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.

I have no plans, commitments, or agreements to pursue outside employment, with or
without compensation during my service with the court,

22. Sources of Income : List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding $500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1978, may be substituted here).

See attached Financial Disclosure Report.

23. Statement of Net Worth : Please complete the attached financial net worth statement in
detail (add schedules as called for).

See attached Net Worth Statement.

24. Potential Conflicts of Interest :

a. Identify the family members or other persons, parties, categories of litigation, and
financial arrangements that are likely to present potential conflicts-of-interest
when you first assume the position to which you have been nominated. Explain
how you would address any such conflict if it were to arise.

1 am not aware of any conflicts in any of these categories at this time subject,
however, to my current recusal list. But, in any event, I would review each case
to double check if any conflict existed, and, if it did, 1 would recuse myself.

b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.

In my present position, I always review a case assigned to me to see whether a
potential conflict of interest exists, by adhering to 28 U.S.C. § 455, other relevant
statutes, the Code of Conduct for United States Judges, and any applicable
policies and procedures of the United States Courts. If a conflict is evident, I will
recuse myself. If there is the potential for a conflict, 1 will contact counsel and
advise them of the potential conflict and ask whether they want me to recuse
myself. If confirmed for this position, I will observe the same practice.

25. Pro Bono Work ; An ethical consideration under Canon 2 of the American Bar
Association’s Code of Professional Responsibility calls for “every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in

51

68

serving the disadvantaged.” Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.

While in private practice, I participated in the South Carolina Bar pro bono program. I
probably got a case per month, which would take roughly four hours of my time. For
several years, I served on the Pickens County Public Defender Board. It was a three-
member board with oversight responsibility for indigent representation. No pay or
gratuity was involved, and it took a few hours per month. I also participated in
community and church food bank programs for several years. After becoming a judge, I
have not handled any pro bono matters, but I volunteer nty time to assist law students and
young lawyers in their transition into practice. Every summer, I also accept a number of
interns to give them experience in a federal court chambers. Additionally, I have judged
several mock trial competitions in the last few years.

26. Selection Process :

a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
the interviews in which you participated). Is there a selection commission in your
jurisdiction to recommend candidates for nomination to the federal courts? If so,
please include that process in your description, as well as whether the commission
recommended your nomination. List the dates of all interviews or
communications you had with the White House staff or the Justice Department
regarding this nomination. Do not include any contacts with Federal Bureau of
Investigation personnel concerning your nomination.

We do not have a selection commission in our jurisdiction, but I have had at least
three conversations with United States Senator Lindsey Graham about the
nomination. Also, I have had communication from Democratic Congressmen
Spratt and Clybum by way of a letter that each Congressman had recommended
me to the President of the United States.

Since April 2010, 1 have communicated with pre-nomination staff in the
Department of Justice. 1 was interviewed by the Department’s pre-nomination
staff, and by the White House Office of Counsel, on August 4, 2010.

b. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any currently pending or specific case, legal issue or question
in a manner that could reasonably be interpreted as seeking any express or
implied assurances concerning your position on such case, issue, or question? If
so, explain fully.

No.

52

m tv, i/2008 ■■ ■ |

69

FINANCIAL DISCLOSURE REPORT
NOMINATION FILING

Report Required by the Ethics
In Government Act of 1978
(3 V.S.C. app. §§ 101-111)

t. Penan Reporting (Ian name, first, middle initial)

Floyd, Henry F.

2. Court or Organization

Fourth Circuit

3. Date of Report

03/26/201 1

i. Title (Article III judge* indicate active or senior statui;
magistrate judges indicate full* or part-time)

Circuit Judge

1 5*. Report Type (cheek appropriate type)

j~y| Nomination, Dote 01/26/7011

j | Initial Qj Annual Final

1 6. Reporting Period

1/1/2010

to

12/31/2010

5b. j"””] Amended Report

7. dumber* or Office Addreij

9. On the hull of the information contained io thi* Report and any |

1 modififilluaj pertaining thereto, It la. In my opinion, la eamptfinee i

20! Magnolia Street

with applicable law* and regulation*.

Spartanburg, SC 29306

Reviewing Officer

Date |

IMPORTANT NOTES: Tkt instructions accompanying this form must be followed. Complete all parts,
checking the NONE box for each pari where you have no reportable information. Sign on last page.

I. POSITIONS. (Reporting Individual only ; tee pp, 9-11 of filing Instructions.)
j / 1 NONE (No reportable positions.)

POSI TION

II. AGREEMENTS » ( Reporting Individual only; Stepp. U-li of filing instructions.)
I | NONE (No reportable agreements.)

PAIE

1. 1992

S.C. Judges and Solicitor* Retirement System, retirement hind payable upon retirement at age 55

70

FINANCIAL DISCLOSURE REPORT

Page 2 of 6

N»me of PenDB Reporting

Floyd, Henry F.

1 Date of Report |

01/26/2011

III* NON-INVESTMENT INCOME. (Reporting Individual and jpouitsiecppc 17-24 of filing instruction!)

A. Filer's Non-Investment Income
[ NONE (No reportable non-investment income.)

DATE

SOURCE AND TYPE

INCOME
(youra, not spouse’s)

1 . 2009 Judges & Solicitors Retirement System - retirement

S72.S40.00

2. 2010 Judges & So Heitors Retirement System - retirement

S72.34S.00

B. SpOOSe’S Non-Investment Income - If you were married during my portion of the reporting year, complete this section.
(Dollar amount not required except for honoraria!

| | NONE (No reportable non-investment income.)

PATE- SOURCE AND TYPE

1.20)0 School District of Pickens County -salary

IV. REIMBURSEMENTS — transportation, lodging, food, entertainment.

(Include/ those to spouse and dependent children; Set pp. 23-2? of filing instructions.)

□ NONE (No reportable reimbursements.)

SOURCE DATES LOCATION

PURPOSE

l. exempt

71

FINANCIAL DISCLOSURE REPORT

Name of Perron Reporting j

D*te of Report

Page 3 of 6

Floyd, Henry T.

01/?fi/201I

V. GIFTS. (Include* those to spume and dependent children/ tee pp. 1S-31 of filing Instructions.)

| | NONE (No reportable gifts.)

squsce DEscEimm mm

I, CKOTOpI

2.

3 ,

S.

VI. LIABILITIES. (Includes those of spouse and dependent ch Udren,- set pp 31-33 of fdlnj instructions.)

( 1 NONE (No reportable liabilities.)

CREDITOR DESCRIPTION

]. ComcretoiK National Bonk unsecured credit line

J

2. Bank of America

mortgage on rental property Pickens County. SC (Pt. VII. Line 9)

72

FINANCIAL DISCLOSURE REPORT

Name of Fcrioa Reporting

Date of Report

Page 4 of 6

Floyd, Henry F, |

01726/201!

VII. INVESTMENTS and TRUSTS — Income, voht, troniMthm {TitduJei OiM* o/spoiut and dependent chUireni s*t pp. 34-60 of filing initmclhns. )
| 1 NONE (No reportable income, assets, or transactions.)

(5)

Identity of
buyer/ttllcT
(if private
inuiiscuon)

) . Southern Company common stock

A

Dividend

J

T

Exempt

2. IRA «1

A

Dividend

J

T

■

■

3. - Jennison 20/20 Focus Fund

4. Peoples Notional Bank Accounts

A

Interest

B

B

■

■

5. New York Life * Variable Lnivercal Life Po
liey

A

Interest

K

T

1

■

6. MciLifc Insumnw (formerly Travelers Life
St Annuity)

n

B

T

7. SunTrust Bank Accounts

m

T

8. Pickens County, SC inhcrited/giftcd real est
Me

None

PI

S

B

■

See Part VIII

9. Rental property, Pickens County, SC (2009
552,500)

c

Rent

M

R

■

10, Carolina First accounts

A

Interest

K

T

II.

12.

13.

14.

15.

10.

17.

Deieripiion of A»*ets
{including (A) S', assets)

Place ”{X)" alter each asset
exempt from prior disclosure

: B.

Income during

reporting period

c.

Qross value st end of j
reporting period 1

m

Amount
Code 1
(A-H)

m

Type (e.g.,
div„ rent,
orinL)

O)

Value

Code!

(>-P)

(2)

Value

Method

Code 3
«FW)

Transactions during reporting (

0 >

Type {c-g-,
redemption)

: (2)

(3)

(4) j

Date

Value

Gain I

Month -

Code i

Code 5

Day

(Mr

(A-H) |

1. toceauc Gain Cuds*:

A-JI.OOOortcM

B -51,001 - n.3oa

C -$2,551 -js.oeo

D —55.001 - $13,000

E -St3$»( .$30,000

(S*e Cotunvu Dt and D«)

F-1JO.OOI -$100, COO

0-3100,001 -$>,M0.M»

HI >41,000.001 - $5,000,000

H2 -More thin 13,000,000

1 Value Coda

) -$13,000 or leu

K -115,001 -$3<J, MO

L -URDOl . $100,000

M-ilOO,001 .$134006

(S« Column! Cl red D3)

N-nja.C01-J300.0CO

0-5500.®! -11,000,000

F! -51.000.001 .J3.000J00

n -13.000, 001 ■ $13,000,000

n -$23,000,001 - $30,000,000

P4 Adn than 130.000.000

1. Value Method Coin

O-ApprriiaJ

R -Cca (Real EJU» Only)

S -Aareureeel

T<aab Market

(See Column C2)

U -Doot Value

V -Other

W Meditated

73

FINANCIAL DISCLOSURE REPORT

N«me et Ptnon Reporting

I>»te of Report

Page 5 of 6

Floyd, Henry F.

01/26/2011

VUI, ADDITIONAL INFORMATION OR EXPLAN ATIONS ♦ (Indicate part of Report)

Part V][, Line 8 — Assessed value $1,200,000-00. Filers interest is one-fourth of total value shown.

FINANCIAL DISCLOSURE REPORT

Nimc of PervjQ Reporting

D*l* of Report

Page 6 of 6

Floyd, Henry F.

01/26/201 1 j

IX. CERTIFICATION.

1 certify (hat all Information given above (Including Information pertaining to my spouse and minor or dependent children, if any) ll
accurate, true, and complete to the best of my knowledge and belief, and that any Information not reported was withheld because It met applicable statutory
provUkm* permitting non-dlsclosurc.

I further certify that earned Income from outside employment and hmoraria and the acceptance of gifts which have been reported are In
compliance with the provisions of 5U.S.C. app. § SOI et seq., 5 U.S.C § 73 S3, sod Judicial Conference regulation j.

NOTE: ANY INDIVIDUAL WHO KNOWINCLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE SUBJECT TO Cl V1L
AND CRIMINAL SANCTIONS (S U.S.C. app. § 104)

FILING INSTRUCTIONS

Mail signed original and 3 additional copies to:

Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301

One Columbus Circle, N.E.

Washington, D.C. 20544

74

Henry Floyd.

FINANCIAL STATEMENT
NET WORTH

Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank
accounts, real estate, securities, trusts, investments, and other financial holdings) all liabilities (including
debts, mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate
members of your household.

ASSETS

LIABILITIES

Cash on hand and in banks

75

000

Notes payable to banks-secured

32

250

U.S. Government securities

Notes payable to banks-unsecured

8

784

Listed securities - see schedule

14

482

Notes payable to relatives

Unlisted securities

Notes payable to others

Accounts and notes receivable:

Accounts and bills due

7

568

Due from relatives and friends

Unpaid income tax

Due from others

Other unpaid income and interest

Doubtful

Real estate mortgages payable - see
schedule

441

557

Real estate owned - see schedule

.

370

500

Chattel mortgages and other liens payable

Real estate mortgages receivable

Other debts-itemize:

Autos and other persona? property

170

ooo

Cash value-life insurance

«n

cn

950

Other assets itemize:

■

1 1

■

1 ■

Total liabilities

159

Net Worth

\

773

Total Assets

1

665

932

Total liabilities and net worth

1

665

932

CONTINGENT LIABILITIES

GENERAL INFORMATION

As endorser, comaker or guarantor

Are any assets pledged? (Add schedule)

NO

On leases or contracts

Arc you defendant in any suits or legal
actions?

NO

Legal Claims

Have you ever taken bankruptcy?

NO

Provision for Federal Income Tax

Other special debt

-<■ ■■■■»■!«

75

FINANCIAL STATEMENT

NET WORTH SCHEDULES

Listed Securities

Southern Company $ ] 0,800

Prudential Jennisen 20/20 Focus Fund 3,682

Total Listed Securities $ 14,482

Real Estate Owned

Personal residence $ 3 ] 5,000

Second residence 215,000

Rental property 1 26*000

Undeveloped property 714,500

Total Real Estate Owned $ 1,370,500

Real Estate Mortgages Payable

Personal residence (1st mortgage) $ 138,532

Personal residence (2nd mortgage) 43,290

2nd residence 199,500

Rental property 60,235

Total Real Estate Mortgages Payable $ 441 ,557

76

AFFIDAVIT

I, HENRY FRANKLIN FLOYD, do swear that the information provided
in this statement is, to the best of my knowledge, true and
accurate .

77

Judge Floyd. Thank you. May I be excused?

Senator Franken. Yes.

[Laughter.]

Senator Franken. I would now like to proceed to the second
panel with Ms. Monaco.

[Nominee sworn.]

Senator Franken. Thank you. Please be seated. And I under-
stand you have an opening statement, and you should also feel free
to introduce any members of your family that are with you today.

STATEMENT OF LISA O. MONACO, NOMINEE TO BE ASSISTANT

ATTORNEY GENERAL, NATIONAL SECURITY DIVISION, U.S.

DEPARTMENT OF JUSTICE

Ms. Monaco. Thank you very much, Chairman Franken and
Ranking Member Grassley.

I would like to introduce the members of my family who are here
today. With me today are my parents, Dr. Anthony Monaco, and
my mother, Mary Lou Monaco, who traveled here from my home-
town of Newton, Massachusetts, as Senator Brown referenced, and
I am very pleased that they are here today.

Senator Franken. Welcome.

Ms. Monaco. With them is my middle brother, Mark, and his
wife, Jennifer Monaco. They traveled here from New York City,
and I am very pleased they are here. My niece and nephew, Sophia
and Nicholas Monaco, would have very much liked to have skipped
school. However, my brother and sister-in-law I think made a wise
decision.

Back home in Massachusetts, I have a twin brother and his wife,
Lisa, and my nieces Jessica and Julia, and my brother, Peter, and
his wife, Sara, and I suspect they’re all watching on the Webcast.
So I appreciate their

Senator Franken. Welcome to them, in that case.

Ms. Monaco [continuing]. Appreciate their support.

I have a number of friends and colleagues here from the depart-
ment, and, also, colleagues from the National Security Division. Fm
particularly honored that they’re here to support me today, and a
number of friends, as well. So I appreciate their support.

Chairman Franken, if I could request that my full statement be
entered into the record.

Senator Franken. It will be.

Ms. Monaco. And I have just a few brief opening remarks, if I
could.

Senator Franken. Sure, go ahead.

Ms. Monaco. Chairman, I want to thank Senator Brown for his
very kind introduction earlier this afternoon. I also want to thank
the President for his confidence in nominating me, the Attorney
General for his support, and the members of this Committee for
considering my nomination.

I’m here today as someone who has been extremely fortunate in
my life and in my work. I would not be here today if not for the
support of my parents. They have enabled me to enjoy many bless-
ings, including pursuing work I am committed to in a department
that I love.

78

They have taught my brothers and I about hard work, integrity,
and about living one’s values. And because of these lessons, I’m
very fortunate to be here today, tremendously honored to do so.

I spent nearly 13 years, Senator, in the Justice Department. In
that time, the world has changed. The events of September 11 al-
tered forever the way the department and the FBI operate, and I
have been part of that transformation and learned that our Nation
faces complex and evolving national security threats; and, to com-
bat those threats, we must be aggressive, we must be agile in our
approach, and we must act consistent with the rule of law.

Every morning for several years now, I have reviewed intel-
ligence and threat streams together with talented agents, analysts
and prosecutors. I have been privileged to work with Director
Mueller to help advance the bureau’s transformation from a law
enforcement agency that investigates crime after the fact to a na-
tional security organization focused on preventing the next attack.

The same principles guided Congress in creating the position for
which I have been nominated, and Congress had the wisdom to re-
move barriers, legal and structural, to allow committed profes-
sionals to share their information, their talent, and their missions.

The National Security Division is the embodiment of that vision,
where intelligence lawyers come together with agents and prosecu-
tors to combat terrorist plots, as well as spies and cyber criminals
bent on stealing our secrets.

The mission of the division most fundamentally is to prevent ter-
rorism and to protect the American people. If I am fortunate to be
confirmed, I will be proud to serve alongside the outstanding men
and women in the National Security Division.

I pledge to give my all, to carrying forward the work of those who
have gone before me, mindful of the gravity of the duties I will be
assuming, and committed to doing so in the best traditions of the
Department of Justice.

I thank you, Mr. Chairman, and I welcome the committee’s ques-
tions.

[The prepared statement of Ms. Monaco appears as a submission
for the record.]

Senator Franken. Thank you. And, Senator Grassley, I know
you have a time constraint. So if you would like to start the ques-
tioning.

Senator Grassley. I appreciate that. And for the benefit of the
other nominees, I have the Sioux City Chamber of Commerce in
town and I have them as an appointment in just a little while.

It has been argued that because there is not an enemy state
against which such a war on terror can be waged, the very notion
of, “war on terror” is, at best, a public relations expression.

Do you agree with that sentiment or do you believe that the
United States is, in fact, engaged in actual war against terrorism?

Ms. Monaco. Senator, thank you very much for that question. I
think I would respond this way. I believe we are at war and I be-
lieve we are at war against a determined enemy and a very adapt-
able enemy, and that’s been my experience in the time that I’ve
served in the FBI and in the department.

And we need to make sure that we are able to meet the threats
that come at us in that war and to be flexible as we do so.

79

Senator Grassley. Another question. Recently, our Attorney
General announced a reversal in policy that although it was his
opinion that the best venue for prosecution of terrorists was in Fed-
eral court, he made a decision to try terrorists in military court.

He noted that he made his decision only because Congress forced
him to do so.

Do you agree with the Attorney General’s decision to try terror-
ists in military tribunal?

Ms. Monaco. Yes, Senator. My perspective on that is that we
need to hold the 9/11 attackers accountable and we need to move
forward in doing so in the military commissions.

With the good work of this body and the leadership of Senator
Graham and others in this Committee and elsewhere in the Con-
gress, the military commissions were reformed and, I think, pro-
vide a legitimate fora to have a fair, thorough and just proceeding.

Senator Grassley. A follow-up to that is whether or not you
agree with the Attorney General’s opinion that the best venue for
prosecution is in Federal court and that Congress forced him to do
otherwise.

Ms. Monaco. Senator, I think that Congress has an appropriate
role when issues engage national security and security concerns.

As a prosecutor, though, I also think that prosecution decisions
are appropriately made by those with the facts and the law in front
of them and are appropriately made by prosecutors in the executive
branch.

Senator Grassley. The 9/11 Commission found a wall was in
place prior to 9/11 between counterintelligence community and the
law enforcement community. Legal and institutional reforms have
taken down that wall. But I am concerned about efforts to rebuild
that wall or weaken those reforms.

Do you think a wall previously existed and, if so, does it still
exist?

Ms. Monaco. Senator, thank you very much for that question. I
think that issue is one that we have to be ever vigilant on, and,
that is, re-erecting any wall, structural, legal or perceived.

As my opening comments, I think, indicated, we are best
equipped to wage a fight against terrorism when we’re bringing all
tools to the table, sharing intelligence in law enforcement.

The reforms that this body enacted after 9/11 and the creation
of the National Security Division has enabled us to do that and I
think we need to make sure that that stays the case.

Senator Grassley. The Gorelick memo which established that
wall was issued in 1995. Although you did not join the Department
until 1998, were you involved in any subsequent review, revision
or implementation of that memo?

Ms. Monaco. I don’t believe so, Senator. I was

Senator Grassley. Well, let us leave it that way. But if you do
think, as an afterthought to my question, submit something in
writing to me.

Ms. Monaco. Absolutely, be happy to do that, Senator.

Senator Grassley. Because if there is any relationship you had
with that, I would like to know that.

Ms. Monaco. Certainly.

80

Senator Grassley. Do you support the permanent extension of
the PATRIOT Act provisions, which are soon to expire, the Lone
Wolf provision, the roving wiretap provision, and the business
records provision?

Ms. Monaco. Senator, I noted in your opening comments your
focus on the PATRIOT Act and the need to reauthorize those provi-
sions, and I want to thank you for your focus on that issue.

The reforms from the PATRIOT Act and those expiring provi-
sions, in particular, are absolutely critical tools that the National
Security Division uses every day to make sure that national secu-
rity investigators are able to stay on the same plane and in the
level playing field with criminal investigators in the tools that they
use.

I think we need to have those provisions reauthorized for a sub-
stantial period of time in order to give stability and clarity to our
agents in the field who need those tools quite essentially.

Senator Grassley. I may submit some questions for answer in
writing, but you have got through the most important issues that
I wanted to discuss with you.

Thank you, Mr. Chairman, for your courtesy.

Senator Franken. You are very welcome. And say hi to the Sioux
City Chamber of Commerce.

You know what? I will turn it over to Senator Durbin, since we
are going a little out of order.

Senator Durbin. Thank you very much.

Ms. Monaco, thank you for joining us. And I certainly am im-
pressed with your background and work as chief of staff at the FBI
with Director Mueller, who is wrapping up his 10-year service as
director of the Federal Bureau of Investigation.

I think he came right after 9/11 and he faced some extraordinary
challenges, which I would like you to comment on. The one that
struck me among so many other things that came out during the
investigation of 9/11 was the status of the information systems at
the Federal Bureau of Investigation on the day of that attack.

As hard as it was to believe, the computers in the Federal Bu-
reau of Investigation on 9/11 did not have access to the Internet,
did not have word check, and were incapable of transmitting photo-
graphs.

Most of what I have just described was common technology avail-
able on the open market. But the FBI was that antiquated and
that far behind that they sent out photos of the suspected terrorists
by overnight mail, because they could not send them by computer.

Director Mueller tackled that issue and I think, by his own ad-
mission, he had some success and some failure in trying to put an
up-to-date, modern computer system into the Federal Bureau of In-
vestigation.

Now, as I understand your job that you are responding to here
in the National Security Division, it is to try to break down some
of the barriers between agencies so that there is at least one place
or many places where we share information and can follow up on
it, as you say, to prevent an attack, not to react after that.

What do you think, from your experience, is the current state of
the communications technology at the FBI and in the Department
of Justice when it comes to sharing that information?

81

Ms. Monaco. Thank you, Senator Durbin. You’ve hit upon a crit-
ical issue in the ability of the department, the FBI, and, of course,
the government as a whole to make sure that we are, for lack of
a better phrase, able to connect the dots and share information and
to come back and identify terrorist attacks before they occur.

From my perspective, as having served at the FBI, thankfully, by
the time I got there, I had a connection to the Internet and, in fact,
the bureau was operating at what they call there enclaves. In other
words, each individual and certainly the leadership focused on ter-
rorism issues had at his or her desktop access to an unclassified
network and the Internet, a secret level network, and a top secret
level network.

So I think that was a dramatic improvement from the state of
things prior to 9/11, and I think the country has Director Mueller
to thank for focusing just relentlessly on that issue, as you note,
and from your focus on the issue. And I know you focused on the
development of the Sentinel program over a number of years. Be-
cause of that focus, he was able to move things.

I would say that we are not where we need to be and the pro-
liferation of data bases and the need to share travel information
with immigration information, with criminal information, is a con-
tinuing challenge because of the legal rules that are applied to
those different sets, and the privacy protections that we have to be
very mindful of with regard to U.S. person information.

But I think it is something we have to be constantly focused on
and to build on the progress that has been made.

Senator Durbin. The last question I have relates to the other
side of that equation. Once the technology is there, the question is
whether the cultures of the agencies will allow them to share infor-
mation.

As hard as it may be to believe, as the intelligence community
looked into 9/11, we found a lot of good information that was not
shared because of the belief that it somehow could jeopardize the
career of the person sending it or it should stay within the agency,
and I hope that we are moving beyond that.

Certainly, the position you aspire to is one that was designed to
move beyond that. What has been your experience in terms of this
culture? Is it still stovepiped, to use that old cliche, or is it getting
better?

Ms. Monaco. I think it’s getting better, to a significant degree.
My personal experience is that every morning, as I mentioned in
my statement, agents and analysts and prosecutors all sit together
to review the same information. That is something that didn’t hap-
pen before 9/11.

That same meeting is occurring everywhere around the govern-
ment in different agencies, at State Department, at Homeland Se-
curity. So you have the same people looking at the same informa-
tion and that is a critical development.

In the National Security Division, you have — and the very pur-
pose of it was to have intelligence lawyers sitting next to criminal
prosecutors, those with law enforcement authorities, and working
with agents and investigators. That didn’t happen before Congress
had the wisdom of creating the National Security Division.

82

So now, every day, the people who are looking at the FISAs and
the people who are looking at somebody, a terrorism or espionage
target, for a potential prosecution are sitting side-by-side.

Senator Durbin. Thank you, Ms. Monaco.

Thank you, Mr. Chairman.

Senator Franken. Thank you, Senator.

Ms. Monaco, first of all, let me say that our office has received
no shortage of calls from people in the law enforcement community
who have been effusive in praising you and your nomination, and
your family should be proud of where you are today.

Ms. Monaco. Thank you, Mr. Chairman.

Senator Franken. I was really impressed with your work on the
Enron scandal and I understand that you earned the — I guess Sen-
ator Brown said that — you earned the Department of Justice’s
highest award for your work on the Enron task force.

I realize the position you are nominated to would not be involved
in Enron-type investigations or prosecutions, but if someone inter-
ested in protecting everyday Americans from corporate malfea-
sance, I want to know what you think lessons learned are from the
Enron scandal.

Ms. Monaco. Senator, I think from the perspective of individuals
who the Enron task force prosecuted, I think the lessons were that
individuals created very complicated structures and that there was
a very high appetite for risk in that corporation, and that led the
leaders of that organization and others to conduct a number of
transactions that created a fictional picture, if you will, of what the
actual corporation was doing.

And I think with the reforms that Congress enacted after that,
Sarbanes-Oxley and the like, we have a much better regime in
place to prevent that. But I don’t think we’re done.

From an investigative standpoint, it’s actually somewhat similar
to the position I’m going to now, which is, if I am confirmed, the
focus by investigators on pieces of information and connecting it
and taking a complex situation and simplifying it down to its es-
sence was the point of the prosecution of Enron, and I think some
parallels can be made in the national security realm.

Senator Franken. Well, thank you, Ms. Monaco.

We will now proceed to the third and final panel of this after-
noon’s hearing. You are excused. Thank you very much.

Ms. Monaco. Thank you, Mr. Chairman.

Senator Franken. Would the third panel come forward and
stand and raise your right hands? Now, I would like you, please,
to swear the oath.

[Nominees sworn.]

Senator Franken. Please be seated. And I invite you, each of
you, starting with Judge Ramos, to introduce members of your fam-
ily and friends who are here today.

[The biographical information of Lisa 0. Monaco follows.]

83

UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY

QUESTIONNAIRE FOR NON-JUDICIAL NOMINEES

PUBLIC

1. Name ; State full name (include any former names used).

Lisa Oudens Monaco

2. Position : State the position for which you have been nominated.

Assistant Attorney General for National Security

3. Address ; List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.

United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

4. Birthplace : State date and place of birth.

February 1968, Boston, Massachusetts

5. Education : List in reverse chronological order each college, law school, or any other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.

University of Chicago Law School

1994-1997

J.D., June 1997

United States Department of Agriculture
1991 (evening course in economics)

Harvard University
1986-1990
B.A., June 1990

6. Employment Record : List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation

1

84

from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.

United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

Principal Associate Deputy Attorney General (Feb. 2010- present) (Acting, Feb. 2010-
Jan. 2011)

Associate Deputy Attorney General (Jan. 2009-Feb. 2010)

Federal Bureau of Investigation
935 Pennsylvania Avenue, NW
Washington, DC 20535
Chief of Staff (Sept. 2007-Jan. 2009)

Deputy Chief of Staff and Counselor (April 2007-Sept. 2007)

Special Counsel to the Director (on detail, Jan. 2006-April 2007)

Enron Task Force

United States Department of Justice
1400 New York Avenue, NW
Washington, DC 20530

Assistant United States Attorney (on detail) (May 2004-Jan. 2006)

United States Attorney’s Office for the District of Columbia
555 4 th Street, NW
Washington, DC 20001

Assistant United States Attorney (Jan. 2001 -April 2007)

United States Department of Justice
Office of the Attorney General
950 Pennsylvania Avenue, NW
Washington, DC 20530
Counsel (Nov. 1998-Jan. 2001)

The Honorable Jane R. Roth

United States Court of Appeals for the Third Circuit

844 King Street

Wilmington, DE 19801

Law Clerk (Sept. 1997-July 1998)

The Chicago Law Foundation
University of Chicago Law School

hue 60th st

Chicago, Illinois 60637

(scholarship organization that funded summer work by law students in the public interest)
Treasurer ( 1 995-1997)

2

85

Hogan and Hartson, I.LP

555 13 th St., NW

Washington, DC 20005

Summer Associate (June 1996-September 1996)

White House Counsel’s Office

The White House

1600 Pennsylvania Avenue, NW

Washington, DC 20500

Summer Intern (July 1996 - August 1996)

United States Department of Justice
Office of Legislative Affairs
950 Pennsylvania Avenue, NW
Washington, DC 20530
Summer Intern (July— September 1995)

The Honorable Wendell P. Gardner
Superior Court of the District of Columbia
500 Indiana Avenue, NW
Washington, D.C. 20001
Summer Intern (June-July 1995)

United States Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Research Coordinator (June 1992-September 1994)

Health Care Advisory' Board
Watergate Office Complex
Washington, DC 20005
Senior Associate (June 1991-June 1992)

The Wilson Quarterly

Woodrow Wilson International Center for Scholars

Smithsonian Institution

370 L’Enfant Plaza

Washington, DC 20024

Research Assistant (J uly 1990-July 1991)

7. Military Service and Draft Status : Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.

3

86

I have never served in the military. I was not required to register for the selective service.

8. Honors and Awards : List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.

Editor-in-Chief, University of Chicago Law School Roundtable, Sept. 1996-June 1997
Attorney General’s Award for Exceptional Service, September 12, 2006
Department of Justice Awards for Special Achievement (September 2002; August 2003;
December 2005)

Elizabeth Cary Agassiz Certificate of Merit, Harvard College

9. Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.

Member, New York Bar, April 14, 1998 to present (no office held).

I may have had a brief membership to the American Bar Association in approximately
2007 (no office held).

10. Bar and Court Admission :

a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.

April 14, 1998, New York Bar. I have had no lapses in membership.

b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
in membership. Give the same information for administrative bodies that require
special admission to practice.

United States Court of Appeals for the Third Circuit, May 18, 1998
United States Court of Appeals for the District of Columbia Circuit, May 29,

2001

I believe the above admissions have lapsed because I have had no occasion to
practice in those courts since 2004.

I also appeared frequently before the Court of Appeals for the District of
Columbia in 2001 in connection with my work in the Appellate Division of the
United States Attorney’s Office. I do not believe I was required to acquire
separate admission to that court. Similarly, as an Assistant United States Attorney
I appeared regularly in the United States District Court for District of Columbia

4

87

from 2003 to 2004 and in the United States District Court for the Southern
District of Texas from 2004 to 2006. I do not believe I was required to be
admitted before these courts.

1 1. Memberships :

a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 10 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership or participation, and indicate any office you held.
Include clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.

Edward Bennett Williams Inn of Court, Associate-at-I.arge, 2002-present
Washington Sports Club, circa 1990-present

I may have had a free membership in the Harvard Club shortly after graduation
from college. In addition, I may briefly have been a member of the Harvard Club
of Washington, D.C., when I moved here in 1990. I cannot locate any records of
those memberships.

1 have made financial contributions over the years to the schools I have attended.

I may have made financial contributions to charitable organizations over the
years. I have not included in the list above any organizations to which I gave
funds and did not otherwise participate in programmatic activities.

b. Indicate whether any of these organizations listed in response to 1 la above
currently discriminate or formerly discriminated on the basis of race, sex, religion
or national origin either through formal membership requirements or the practical
implementation of membership policies. If so, describe any action you have taken
to change these policies and practices.

Not that I am aware of.

12. Published Writings and Public Statements :

a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Supply four (4) copies of all published
material to the Committee.

I have done my best to identify all books, articles, reports, letters to the editor,
editorials and other published material, including through a review of my personal
files and searches of electronic databases. Despite my searches, there may be

5

88

other materials I have been unable to identify, find or remember. I have located
the following:

Give the People What They Want: The Failure of Responsive Lawmaking, The
University of Chicago Law School Roundtable, Vol. 3, No. 2 (1996). (Law
School note)

b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, give the
name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.

None, although as a staff assistant to the Senate Judiciary Committee from 1 992-
1994 I provided research assistance to a number of committee reports issued by
the Chairman.

c. Supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.

None.

d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by you, including commencement speeches, remarks, lectures, pane! discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk. If you do not have a copy of the speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.
If you did not speak from a prepared text, furnish a copy of any outline or notes
from which you spoke.

I have done my best to identify speeches or talks I have given by reviewing my
calendars, persona! files and publicly available electronic databases, although
there may be some I do not recall that 1 have not been able to find.

Seminar on Domestic Preparedness, Harvard University. In October, 2000, 1
spoke to a small seminar at the John F. Kennedy School of Government. No
transcript is available.

Edward Bennett Williams inn of Court, “Let’s Make a Deal - How to deal with
the prosecution in white collar cases.” I was part of a panel discussion. October
17, 2002. No notes or transcript available.

6

89

American Bar Association, Young National Security Lawyers. I was part of a
panel discussion on the “law of leaks” and media leak legislation. I cannot recall
the precise date but believe it was in the spring of 2004. No notes or transcript
available.

Edward Bennett Williams Inn of Court, Electronic Evidence. 1 was a panelist for
a discussion of electronic evidence in criminal prosecutions. I cannot recall the
precise date but I believe this was in the spring of 2004. No notes or transcript
available.

Federal Bureau of Investigation, All Employee Conference, Indianapolis, Indiana
Field Office of the FBI. I gave a presentation to assembled agents and employees
on the investigation and subsequent prosecutions arising from the collapse of the
Enron Corporation. November 2, 2006. A copy of the presentation is attached.

American Bar Association Annual Meeting, Media, Privacy and Defamation Law
Committee Litigation Committee, San Francisco, California. I was part of a panel
discussion about the FBI and balancing national security and civil liberties.
August 11, 2007. A copy of the presentation is attached.

KWA Women’s Speakers Series, The Belmont Hill School, Belmont,
Massachusetts. I spoke about the FBI after 9/11 . November 8, 2007. Notes
attached.

National Security Fellows Program, John F. Kennedy School of Government,
Harvard University, Cambridge, Massachusetts, I was a guest speaker for a
meeting of government officials participating in the Kennedy School's National
Security fellows program. November 9, 2007. Notes attached.

American Bar Association, Litigation Section Leadership Meeting, San Diego,
California. I was part of a panel discussion on national security issues. January
2008. No notes or transcript are available. My recollection is that I addressed
topics similar to those listed above regarding the FBI’s role as an intelligence-
focused national security organization.

Securities Enforcement Coordination Conference, Securities and Exchange
Commission. I was a panelist with other prosecutors and SEC lawyers to discuss
parallel proceedings in white collar cases. March 11,2008. Notes attached.

YWCA, Women in Power Speakers Series, Palm Beach, Florida. I spoke about
women in careers in law and national security. April 22, 2008. Remarks
attached.

7

90

Women in International Regulator} 7 Law Symposium, “Challenges in
International Security,” I was part of a panel discussion regarding international
security issues. June 1 8, 2008. Notes attached.

American Bar Association, Criminal Justice Section, Third Annual National
Institute on Securities Fraud, “Subprime Meltdown: Reactions and Actions by the
SEC and DOJ.” Arlington, Virginia. I was part of a panel discussion on the
Department’s response to the subprime meltdown. October 2, 2008. Notes
attached.

American University, International Studies Course, Washington, D.C. I was a
guest speaker for a college-level international studies course. October 28, 2008.
Notes attached.

Women’s White Collar Bar Luncheon, Patton Boggs, LLP, Washington, DC. I
gave brief remarks and fielded questions about the Department’s priorities.
January 26, 2010. Notes attached.

Edward Bennett Williams Inn of Court, Lessons from Guantanamo. I introduced
the panelists. February 18, 2010. Notes attached.

Fordham Law School, Evidence Course, New York, New York. I was a guest
speaker along with the General Counsel of the FBI at a first-year evidence class.
We fielded questions about national security issues and careers in the Department
of Justice and the Federal Bureau of Investigation. April 1 9, 20 1 0. Notes
attached.

Practicing Law Institute, Enforcement 2010: Multi-Agency Enforcement Efforts
in the New Decade, New York, New York. I was part of a panel discussion about
dealing with enforcement agencies. June 1 , 20 1 0. A webcast of this panel is
available at:

http://www.pli.edu/Content.aspx?dsNav=Ny:True,Ro:0,N:4294963167-

167&ID=72109

Georgetown Law School, Legislation Course, September 21, 2010. I was a guest
speaker regarding my experiences working in different branches of government.
Notes attached.

e. List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.

In the summer of 2008, 1 was interviewed by Garrett Graff for a two-part series
regarding the FBI and Director Mueller that ran in the Washingtonian magazine in

8

91

August and September of 2008. Copies of the articles are attached. (This series
spawned a book project by the author. Information from this interview and others
has been included in that book which has just recently been published. Threat
Matrix: The FBI at War in the Age of Global Terror, Garrett Graff, Little Brown,
2011. A copy of the excerpts in which 1 am quoted is attached).

In dune 2007, 1 was interviewed by Richard G. Jones of the New York Times, in
connection with a profile of the incoming Attorney General of New Jersey, Anne
Miigram. That profile appeared on June 2 1 , 2007. A copy of the article is
attached.

1 was interviewed by a reporter from the Denver Post in connection with a profile
of Cliff Stricklin, one of my co-counsel on the Enron Task Force. That profile
appeared on March 11, 2007, “NACCHIO ON TRIAL,” Greg Griffin, Denver
Post, March 1 1, 2007. A copy of the article is attached.

In January 2006, 1 was interviewed by John Roper of the Houston Chronicle, in
connection with a profile of Kathryn Ruemmler of the Enron Task Force that
appeared in that paper on January 29, 2006. A copy of the article is attached.

13. Public Office, Political Activities and Affiliations :

a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, state chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.

I have never been a candidate for public office, although as listed in answer to
Q6., 1 have held a number of positions in the federal government.

b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election committee. If you have ever
held a position or played a role in a political campaign, identify the particulars of
the campaign, including the candidate, dates of the campaign, your title and
responsibilities.

None.

14. Legal Career: Answer each part separately.

a. Describe chronologically your law practice and legal experience after graduation
from law school including:

9

92

i. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;

I served as a law clerk to The Honorable Jane R. Roth, United States Court
of Appeals for the Third Circuit, September 1997-June 1998.

ii, whether you practiced alone, and if so, the addresses and dates;

I have never practiced alone,

iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.

United States Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530

Principal Associate Deputy Attorney General

Acting Principal Associate Deputy Attorney General

Associate Deputy Attorney General

January 2009-present

Federal Bureau of Investigation
935 Pennsylvania Avenue, N.W.

Washington, DC 20535
Chief of Staff to the Director
Deputy Chief of Staff and Counselor
Special Counsel to the Director (on detail)

January 2006-January 2009

Enron Task Force

United States Department of Justice
1400 New York Avenue, NW.

Washington, DC 20530

Assistant United States Attorney (on detail)

May 2004-January 2006

United States Attorney’s Office for the District of Columbia

555 4 th Street, NW

Washington, DC 20001

Assistant United States Attorney

January 2001 -April 2007

10

93

United States Department of Justice
Office of the Attorney General
950 Pennsylvania Avenue, NW
Washington, DC 20530
Counsel to the Attorney General
November 1998-January 2001

United States Court of Appeals for the Third Circuit

The Honorable Jane R. Roth

844 King Street

Wilmington, DE 19804

Law Clerk

September 1997-June 1998

iv. whether you served as a mediator or arbitrator in alternative dispute

resolution proceedings and, if so, a description of the 10 most significant
matters with which you were involved in that capacity.

I have never served as a mediator or arbitrator.

b. Describe:

i, the general character of your law practice and indicate by date when its
character has changed over the years.

From September 1998 to January 2001 , 1 was Counsel to the Attorney
General and provided information and staff assistance on a range of
criminal justice issues. From 2001 to the present, I have continued to
serve in the Department of Justice primarily as a prosecutor and then as an
advisor and supervisor of national security, law enforcement and litigation
matters.

ii. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.

I have served one client throughout my legal career: the United States.

The areas in which 1 have specialized are national security, criminal
prosecution and law enforcement.

c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.

i. Indicate the percentage of your practice in:

1 . federal courts;

11

94

1998-2001: 0%

2001-2003: 0%

2003-2011: 100%

2. state courts of record;

1998-2001:0%

2001-2003: 100%

2003-2011: 0%

3. other courts;

None

4. administrative agencies
None

ii. Indicate the percentage of your practice in:

1 . civil proceedings;

1998-2009: 0%

2009-201 1: 25%

2. criminal proceedings.

1998-2009: 100%

2009-2011: 75%

From 1998-2001, while serving as Counsel to the Attorney General, 1 provided staff
assistance on criminal justice, national security and congressional oversight matters and
did not appear in court. When I became an Assistant United States Attorney (AUSA) in
2001, all of my work was in the criminal arena. For approximately four years, I appeared
in court often on a daily basis in the District of Columbia Superior Court and United
States District Court in the District of Columbia. In 2004, 1 was detailed to the
Department of Justice’s Criminal Division and the Enron Task Force. During the
investigation and subsequent trials of several Enron executives I appeared in court or the
grand jury frequently, including a three-month trial in Federal court in Houston, Texas.
During my career as an AUSA, my practice was roughly split between Superior Court in
the District of Columbia and Federal court matters.

During 2006-2009, while I was at the FBI, my work did not often involve litigation and I
did not have occasion to appear in court. In 2009, 1 began work as an Associate Deputy
Attorney General and assisted in the supervision of federal criminal and civil matters
related to national security (as well as criminal and other matters) but 1 did not have
direct responsibility for any cases and did not appear in court. In 2010, 1 began work as
Acting Principal Associate Deputy Attorney General and now serve permanently in that
position. I supervise the staff of lawyers in the Office of the Deputy Attorney General
and assist the Deputy Attorney General in overseeing the operations of the Department.

12

95

d. State the number of cases in courts of record, including cases before
administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.

i. What percentage of these trials were:

1. jury;

2. non-jury.

I have tried approximately 1 5 jury trials to verdict. 1 was sole counsel in all but
approximately five of these cases. In those five cases, I worked with one other
prosecutor, with the exception of one case in which I was co-counsel with two other
prosecutors.

During my time in the United States Attorney’s Office for the District of Columbia and
the misdemeanor section of that office, I tried many non-jury cases to verdict. The
majority of misdemeanor cases were resolved by plea or bench trial. I do not recall how
many bench trials 1 tried to verdict, but I would estimate 30-40.

e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any
oral argument transcripts before the Supreme Court in connection with your
practice.

I have not practiced before the Supreme Court of the United States.

15. Litigation : Describe the ten (10) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give a capsule summary of
the substance of each case. Identify the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case:

a. the date of representation;

b. the name of the court and the name of the judge or judges before whom the case
was litigated; and

c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.

13

96

1 . U.S. v. Joseph Hirko: Scott Yeager: Rex Shelv; Michael Krautz and Kevin
Howard

Southern District of Texas (4:03CR00093)

Judge Vanessa Gilmore
April 2005-July 2005

Defendants were five executives of Enron's Broadband business unit who were charged
with conspiracy to commit securities and wire fraud, insider trading, and money
laundering in connection with misrepresentations to the investing public about the
progress and success of the Enron “intelligent network.” The investigation and
prosecution was part of the Enron Task Force’s investigation into the collapse of Enron
stemming from the December 2001 bankruptcy of that corporation. I was co-lead
counsel in a three-month trial after which the jury was unable to reach a verdict on a
majority of the charges. In 2005, my co-counsel and 1 reindicted the defendants in three
indictments. After 1 left the Task Force, a number of defendants pleaded guilty or were
retried.

In 2008, the lead defendant (Hirko) pleaded guilty to wire fraud. He received a 1 6-month
sentence and was ordered to pay more than $8 million in restitution and forfeiture. In
2010, defendant Shelby pleaded guilty to insider trading. He agreed to forfeit more than
$2 million in proceeds and is awaiting sentencing. Defendants Krautz and Howard were
retried in 2006. At retrial, Howard was convicted of fraud, conspiracy and falsifying
books and records. Krautz was acquitted. Howard moved to vacate his convictions
based on United States v. Brown . 459 F.3d 509 (5 ,h Cir. 2006), cert, denied , 127 S.Ct.
2249 (2007), which clarified the meaning of “honest services” fraud. The district court
vacated the convictions (471 F.Supp.2d 772), and the Fifth Circuit affirmed (517 F.3d
73 1 ). In 2009, Howard pleaded guilty to one count of falsifying books and records and
was sentenced to one year of probation. Defendant Yeager challenged the November
2005 superseding indictment on collateral estoppel and double jeopardy grounds. The
district court denied his motion to dismiss the superseding indictment (446 F.Supp.2d
719) and the Fifth Circuit affirmed (521 F.3d 367). In 2009, the Supreme Court granted
certiorari, reversed and remanded, finding that the jury’s inability to reach verdicts on
insider trading counts was a “nonevent” for purposes of determining the issue-preclusive
effect of the acquittals. (129 S.Ct. 2360 ).

Co-Counsel :

Benton Campbell

Former AUSA on the Enron Task Force

Currently, Partner at Latham & Watkins, 885 Third Avenue, New York, New York,

10022,212-906-1200;

Cliff Stricklin

Former AUSA on the Enron Task Force

Currently, Partner at Holme Roberts and Owen LLP, 1700 Lincoln Street, Suite

4100, Denver, CO 80203, 303-866-0372.

14

97

Counsel for Defendants :

Defendant Hirko was represented by:

Per Ramjford, Partner, Stoel Rives, LLP, 900 SW Fifth Street, Suite 2600, Portland,
OR 97204, 503-294-9257); and David Anjali, Anjaii Law Group, LLC, 121 SW
Morrison Street, Suite 400, Portland, OR 97204, 503-954-2232

Defendant Yeager was represented by:

JA “Tony” Canales, Canales and Simonson, PC, 2601 Morgan Avenue, PO Box
5624, Corpus Christi, TX 78405, 361-883-0601

Defendant Shelby was represented by:

Edwin J. Tomko and Jason Ross, Curran Tomko Tarski, LLP, 2001 Bryan Street,
Suite 2000, Dallas, TX 75201 , 2174-270-1405

Defendant Krautz was represented by:

Barry J. Pollack, Partner, Miller & Chevalier, 655 Fifteenth Street, NW, Suite 900,
Washington, DC 20005, 202-626-5830

Defendant Howard was represented by:

Jack B. Zimmerman and Jim E. Lavine, Zimmerman and Lavine, 770 S. Post Oak
Lane, Suite 620, Houston, TX 77056, 713-552-0300

2. United States v. Kevin Hannon
Southern District of Texas
Judge Vanessa Gilmore
August 2004

The defendant was the Chief Operating Officer of the Enron Broadband business unit. In
August 2004, 1 negotiated a plea agreement with the defendant in which he pleaded guilty
to conspiracy to commit wire and securities fraud and agreed to testify in subsequent
trials for the Enron Task Force. He was sentenced to 24 months incarceration.

Counsel for Defendant :

Reid Figel, Partner, Kellogg, Huber, Hansen, Todd, Evans and Figel, 1615 M Street,
NW, Suite 400, Washington, DC 20036, 202-326-791 8

3. United States v. Ken Rice
Southern District of Texas
Judge Vanessa Gilmore
July 2004

15

98

The defendant was the Co-Chief Executive Officer of the Enron Broadband business unit.
He was indicted in 2003 for conspiracy to commit securities and wire fraud, insider
trading and money laundering. In July 2004, my co-eounsel and I negotiated a plea
agreement with defendant Rice in which he pleaded guilty to securities fraud and agreed
to testify as a cooperating witness in subsequent Enron Task Force prosecutions. He was
sentenced to 27 months of incarceration and ordered to forfeit approximately $15 million
to the victims of the Enron fraud.

Co-counsel :

Benton J. Campbell, Partner, Latham & Watkins,885 Third Avenue, New York, New
York, 10022,212-906-1200;

Counsel for Defendant :

William D. Dolan, III, Venable LLP, 8010 Towers Crescent Drive, Suite 300, Vienna,

VA 22182,703-760-1680.

4. United States v, Jeffrey K. Skilling and Kenneth Lav
Southern District of Texas
C.R. No. H-04-25 (S-2); Judge Simeon P. Lake
December 2005-January 20006

I worked on certain pre-trial litigation matters but was not a part of the trial team for this
case. My involvement in pretrial litigation included work on the government’s motion to
preclude certain expert testimony and to provide for additional disclosure from the
defense. In addition, I litigated the government’s response to the defendants’ motion to
preclude the government from introducing evidence of defendants’ fraudulent trading
strategies and market manipulation by Enron traders in California. Although the
government lost that motion, it was significant because it highlighted Enron's practice of
generating profits from fraudulent strategies and concealing those profits using reserve
accounts. This was a strategy employed in the overall conspiracy to misrepresent the true
state of Enron with which the defendants were charged.

Attorneys for the Government :

Sean Berkowitz, former Director, Enron Task Force, currently, Partner, Latham and
Watkins, LLP, 233 South Wacker Drive, Suite 5800, Chicago, 1L , 60606, 312-777-7016;
Kathryn H. Ruemmler, former Deputy Director, Enron Task Force, currently. Principal
Deputy White House Counsel, The White House, Washington, DC, 202-456-1256;

John Hueston, former AUSA, Enron Task Force, currently. Partner, Irell & Manella,

1800 Avenue of the Stars, Suite 900, Los Angeles, CA, 90067, 310-277-1010;

Cliff Stricklin, former AUSA, Enron Task Force, currently Partner, Holme Roberts and
Owen LLP, 1700 Lincoln Street, Suite 4100, Denver, CO 80203, 303-866-0372;

16

99

J. Douglas Wilson, Deputy Criminal Chief, U.S. Attorney’s Office for San Francisco, 450
Golden Gate Avenue, San Francisco, CA 94102, 415-436-6778.

Counsel for Defendants :

Dan Petrocelli, Partner, O’Melveny and Myers, LLP, 1999 Avenue of the Stars, Suite
200, Los Angeles, CA 90067, 3 10-553-6700; Mark Flolscher, Partner, Kirkland & Ellis,
777 S. Figueroa, Los Angeles, CA 90017, 213-680-9180; Chip Lewis, 2120 Welch St.,
Houston, TX 77019,713-523-7878.

5. United States v. Obafemi Orenuga

United States District Court for the District of Columbia
No. 03-464
March 2004

430 F.3d 1158 (D.C.Cir. 2005)

Judge John Bates

Defendant was a tax auditor for the District of Columbia Office of Tax and Revenue. He
was convicted at trial for receiving bribes in exchange for reducing the tax liability of
local businesses. He was sentenced to 24 months of incarceration.

Co-counsel :

Julienne Himelstein, Assistant United States Attorney, U.S. Attorney’s Office for the
District of Columbia, 555 Fourth Street, NW, Washington, DC, 20001, 202-252-7957.

Counsel for Defendant :

Edward C. Sussman, 601 Pennsylvania Avenue, NW, Suite 900, Washington, DC 20004,
202737-7110.

6. United States v. Reginald Steward
No. 03-CF-393

Superior Court of the District of Columbia Criminal Division
Judge Erik P. Christian
April 2003

Defendant was convicted of unlawful distribution of heroin after a jury trial. The
government utilized expert testimony regarding the practice of drug distribution
operations and eye witness testimony. The defendant was sentenced to 27 years
incarceration with all but 180 months sentence suspended.

Counsel for the defendant :

17

100

Waiter Booth, 4550 Montgomery Avenue, Suite 601, North Bethesda, MD 20814.

7. United States v. William Mayo
No. F-6976-02

Superior Court of the District of Columbia Criminal Division
Judge Russell Canan
February 2003

Defendant was charged with armed robbery and possession of a firearm during the
commission of a crime of violence. The defendant was acquitted. The matter was
significant because it involved litigation over expert testimony regarding eyewitness
identification by the sole witness/victim to the armed robbery.

Counsel for the Defendant :

Cynthia Katkish, 601 Pennsylvania Avenue, NW, 900 South pmb 221, Washington, D.C.
20004

8. United States v. Didiar Velasquez
801 A.2d 72 (D.C. 2002)

District of Columbia Court of Appeals

Chief Judge Wagner, Judge Schwelb, and Judge Farrell

I briefed and argued this appeal involving a defendant who was convicted of assault with
intent to commit first-degree sexual abuse and threatening to injure a person. The case
arose out of an incident in which the defendant assaulted the complaining witness who
was babysitting her three-year old cousin. The defendant argued that his conviction
should be reversedbecause the trial court violated his Sixth Amendment right to confront
the witness against him by precluding his cross examination of the complaining witness
about her mental illness following the assault. The Court of Appeals affirmed.

Counsel for the Defendant :

Donald Dworsky, 7307 Macarthur Boulevard, Bethesda, MD, 20816, 301-229-1904.

9. United States v. Ricardo Riley
790 A.2d 538 (D.C. 2002)

District of Columbia Court of Appeals
Judges Steadman, Glickman and Belson

I briefed and argued this appeal involving a defendant who was convicted of armed
robbery. The defendant argued that the trial court erred permitting the government to

18

101

introduce evidence of other crimes to demonstrate his intent to aid and abet another in the
commission of the robbery. The Court of Appeals affirmed.

Counsel for the Defendant :

Kali Bracey, formerly of Public Defender Service, now with Jenner & Block, 1 099 New
York Avenue, NW, Suite 900, Washington, DC, 20001, 202-639-6871,

10. United States v. Jose Chavez-Ouintanilla
788 A.2d 564 (D.C. 2002)

District of Columbia Court of Appeals
Judges Terry, Ruiz and Pryor

I briefed and argued this appeal involving a defendant who was convicted of possession
of cocaine and marijuana with intent to distribute. On appeal the defendant challenged
the basis for the search of the convenience store that was being used as a front for drug
distribution in a District of Columbia neighborhood. In particular, the defendant
challenged the use of confidential source information as a basis for an affidavit
establishing probable cause for the search. The Court of Appeals affirmed.

Counsel for Defendant :

Manuel Retureta, Rctureta & Wassem, PLLC, 1614 20 th Street, NW, Washington, DC,
20009, 202-450-6119.

4. Legal Activities : Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that
did not involve litigation. Describe fully the nature of your participation in these
activities. List any client(s) or organization(s) for whom you performed lobbying
activities and describe the lobbying activities you performed on behalf of such
client(s) or organizations(s). (Note: As to any facts requested in this question,
please omit any information protected by the attorney-client privilege.)

From September 1998 to January 2001, 1 was Counsel to the Attorney General and I
provided information, advice and staff assistance on a range of criminal justice, law
enforcement, national security and oversight matters. 1 was not engaged in litigation.

In January 2001, 1 joined the United States Attorney’s Office for the District of Columbia
as an Assistant United States Attorney and thereafter worked as a prosecutor. I served in
the Appellate Section and in the Superior Court Misdemeanor, Felony Trial and Grand
Jury Sections as well as the Criminal Division’s Fraud and Public Corruption Section. In
Superior Court my practice consisted of representing the United States in criminal
appeals to the District of Columbia Court of Appeals and the Court of Appeals for the
District of Columbia Circuit, and conducting grand jury investigations and prosecuting

19

102

drug and gun-related offenses and other violent crimes. In Federal District Court, my
practice consisted of investigating and prosecuting cases of public corruption and fraud.

In 2004. I began a detail to the Department of Justice Criminal Division and the Enron
Task Force. I served as a prosecutor (on detail) to the Enron Task Force to investigate
and prosecute the fraud associated with the collapse of Enron.

In January 2006, 1 began another detail as an Assistant United States Attorney serving as
Special Counsel to the Director of the Federal Bureau of Investigation. As Special
Counsel to the Director, I provided advice and guidance on a range of national security
and law enforcement matters. I did not appear in court in this job.

In April 2007, 1 became Deputy Chief of Staff and Counselor to the Director and then
Chief of Staff at the Federal Bureau of Investigation. During this time I ran the day-to-
day operations of the Director’s office and provided advice and guidance on national
security operations and investigations as well as on criminal and law enforcement
matters. I also assisted in the management and oversight of the National Security Branch
of the FBI (which is responsible for counterterrorism and counterintelligence
investigations) and in the development of the intelligence capability of the FBI. I assisted
the Director of the FBI and other senior executives in advancing the transformation of the
FBI into a threat-based, intelligence-driven national security organization. In this
capacity, I had regular interaction with representatives of the Intelligence Community,
the President’s Foreign Intelligence Advisory Board, and congressional staff.

In 2009, 1 became an Associate Deputy Attorney General. During this period I assisted
the Deputy Attorney General in the management of the national security functions of the
Department including the National Security Division and the Federal Bureau of
Investigation. On behalf of the Deputy Attorney General, I assisted in the supervision of
significant investigations and prosecutions to disrupt national security threats. I worked
regularly with prosecutors and agents on issues relating to counterterrorism and
counterintelligence investigations and prosecutions but I did not have direct responsibility
for any cases. From time to time, 1 briefed senior officials on pending investigations,
prosecutions and national security policy matters. My work also involved representing
the Department at the National Security Council and in interagency meetings with
counterparts from the Departments of Defense, State, Centra! Intelligence Agency, and
the Office of the Director of National Intelligence and other agencies on a range of issues
concerning law enforcement investigations, intelligence collection, and detention policy.

For the past year I have served as the Principal Associate Deputy Attorney General (first
in an acting capacity). In this role, I have had responsibility for management of the staff
of lawyers in the Deputy Attorney General’s Office who assist the Deputy Attorney
General in conducting management of the Department. I have assisted the Deputy
Attorney General in oversight of a range of litigation, policy, and operational matters.
These matters range from significant national security investigations and operations to
criminal prosecutions and civil litigation.

20

103

5. Teaching ; What courses have you taught? For each course, state the title, the
institution at which you taught the course, the years in which you taught the
course, and describe briefly the subject matter of the course and the major topics
taught. If you have a syllabus of each course, provide four (4) copies to the
committee.

I have never taught a course. I have been a guest speaker on a few occasions at one

college and two law schools as described in 12 d. above.

6. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options,
uncompleted contracts and other future benefits which you expect to derive from
previous business relationships, professional services, firm memberships, former
employers, clients or customers. Describe the arrangements you have made to be
compensated in the future for any financial or business interest.

I am invested in the Government's Thrift Savings Plan.

7. Outside Commitments During Service : Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation,
during your service? If so, explain.

No.

8. Sources of Income : List sources and amounts of all income received during the
calendar year preceding your nomination and for the current calendar year,
including all salaries, fees, dividends, interest, gifts, rents, royalties, licensing
fees, honoraria, and other items exceeding $500 or more (if you prefer to do so,
copies of the financial disclosure report, required by the Ethics in Government
Act of 1978, may be substituted here).

Please see SF-278.

9. Statement of Net Worth : Please complete the attached financial net worth
statement in detail (add schedules as called for).

Please see attached Net Worth Statement.

10. Potential Conflicts of Interest :

a. Identify the family members or other persons, parties, affiliations, pending
and categories of litigation, financial arrangements or other factors that are
likely to present potential conflicts-of-interest when you first assume the
position to which you have been nominated. F,xplain how you would
address any such conflict if it were to arise.

21

104

I serve as the trustee or trust protector of trusts created for the benefit of a niece
and nephew and one trust for the benefit of a friend’s children. 1 do not have a
vested interest in any of those trusts, and my role will cease if I am confirmed as
Assistant Attorney General,

b. Explain how you will resolve any potential conflict of interest, including
the procedure you will follow in determining these areas of concern.

In connection with the nomination process, I have consulted with the Office of
Government Ethics and the Department of Justice’s designated agency ethics
official to identify potential conflicts of interest. Any potential conflicts of
interest will be resolved in accordance with the terms of an ethics agreement that I
have entered into with the Department’s designated agency ethics official.

1 1 . Pro Bono Work : An ethical consideration under Canon 2 of the American Bar
Association’s Code of Professional Responsibility calls for “every lawyer,
regardless of professional prominence or professional workload, to find some
time to participate in serving the disadvantaged.” Describe what you have done to
fulfill these responsibilities, listing specific instances and the amount of time
devoted to each. If you are not an attorney, please use this opportunity to report
significant charitable and volunteer work you may have done.

Since I joined the Department of Justice, I have not had the opportunity to represent
anyone other than the United States. From time to time 1 have spoken to law school and
college classes regarding careers in the law and national security.

During law school, 1 served in the Mandel Legal Aid Clinic at the University of Chicago
Law School representing indigent clients in the Law School’s mental health clinic. I
performed this work during my second and third years of law school. Also during law
school I served as the treasurer of a public interest scholarship fund that enabled law
students to do work in the public interest during the summers.

22

105

Lisa Monaco

FINANCIAL STATEMENT

NET WORTH

Provide a complete, current financial net worth statement
which itemizes in detail all assets (including bank accounts,
real estate, securities, trusts, investments, and other
financial holdings) all liabilities (including debts, mortgages,
loans, and other financial obligations) of yourself, your
spouse, and other immediate members of your household.

ASSETS

LIABILITIES 1

Cash on hand and in banks

54

342

.12

Notes payable to banks-secured

U _____ .

0

U.S. Government securities-add
schedule

0

Notes payable to banks-
unsecured

0

Listed securities-add schedule

See Schedule A

13

316

.72

Notes payable to relatives

■

■

0

- '

Unlisted securities — add
schedule

■

■

Notes payable to others

1

0

Accounts and notes receivable:

°

Accounts and bills due

0

Due from relatives and
friends

■

■

Unpaid income tax

0

Due from others

0

Other unpaid income and
interest

o 1

Doubt ful

■

1

n

Real estate owned-add schedule

See Schedule B

4 30

est

ooo

.00

Chattel mortgages and other
liens payable

■

■

■

Real estate mortgages
receivable

0

Other debts-itertuze :

■

■

Autos and other personal
property

5

000

S3

See Schedule D

■

■

■

Cash value-life insurance

m

Home Equity Loan

m

Other assets itemize:

Car Loan

B

UJl

■

Retirement Account

200

064

.46

Fidelity IRA Account

13

567

.45

Unpaid Leave: Est.

32

est

000

.00

Total liabilities

314

258

.19

Net Worth

442

032

.56

23

106

Total Assets

756

290

.75

Total liabilities and net worth

756

290

.75

CONTINGENT LIABILITIES

GENERAL INFORMATION

A3 endorser, comaker or
guarantor

0

Are any assets pledged? (Add
schedule)No

0

On leases or contracts

0

Are you defendant in any suits*
or legal actions? No

0

Legal Claims

0

Have you ever taken bankruptcy?

No

Provision for Federal Income

Tax

0

Other special debt

0

Lisa Oudcns Monaco Net Worth Statement

Schedule A

Listed Securities

Market Value

Fidelity Equity Income II Account (Mutual Fund) $ 1 3,3 1 6.72

Schedule Ii

Rea! Estate Owned

Market Value

1736 18 th Street, NW, #301

Washington, DC 20009 $430,000.00

(purchased in 2004)

Schedule C

Real Estate Mortgage Payable Value

HSBC Mortgage $286,744.69

Schedule D

Other Debts Value

HSBC Home Equity Loan $ 9,230.99

Car Loan: Audi Financial Services

(3 ‘/i year lease, payable in monthly installments of $489/mo.) $ 1 8,282.5 1

24

107

STATEMENT OF HON. NELVA G. RAMOS, TO BE UNITED STATES

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS

Judge Ramos. Thank you, Senator Franken, for the opportunity
to be here.

With me today is my husband, Oscar Ramos.

Senator Franken. Hello.

Judge Ramos. Our son, Christian.

Senator Franken. Welcome, Christian.

Judge Ramos. My sister, Norma Stachura.

Senator Franken. How do you do?

Judge Ramos. Our friends, Caroline Bertuzzi, the honorable Rose
Vela and her husband, Fil Vela. And I thank them for being here
today.

If I could thank Senator Hutchison and Senator Cornyn for their
kind introduction, and I’d like to thank them, as well as former
Congressman Solomon Ortiz, for their support through this process.
And I thank the President for his nomination.

If I could briefly acknowledge my brothers and sisters and other
family and friends who are watching through the Webcast. I thank
them for their support. And acknowledge my mother-in-law, Alicia
Ramos, for her support. And, finally, acknowledge my parents,
Felipe and Isabel Gonzales. It is because of them that I am living
the American dream.

I thank my mother for her tremendous support through the
years. My father is no longer with us. I know he is here in spirit
and is looking down on these proceedings from above.

Thank you, Senator Franken, and I welcome your questions.

Senator Franken. Thank you, and hello to everyone watching on
the Webcast.

Judge Jackson.

[The biographical information of Nelva G. Ramos follows.]

108

UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY

QUESTIONNAIRE FOR JUDICIAL NOMINEES

PUBLIC

1. Name : State full name (include any former names used).

Nclva Gonzales Ramos; Nelva Gonzales

2. Position : State the position for which you have been nominated.

United States District Judge for the Southern District of Texas

3. Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.

901 Leopard Street #804
Corpus Christi, Texas 78401

4. Birthplace : State date and place of birth.

1965; Port Lavaca, Texas

5. Education : List in reverse chronological order each college, law school, or any other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.

1988 - 1991, University of Texas School of Law; J.D. (with Honors), 1991

1983 - 1988, Southwest Texas State University; B.S. {summa cum laude), 1987; Legal

Assistant Certificate, 1988

Summer 1985, 1986 - The Victoria College; no degree received

6. Employment Record : List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation
from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.

2001 - present

State of Texas/Nueces County

90 1 Leopard Street

Corpus Christi, Texas 78401

District Court Judge - 347 lh Judicial District

1

109

1999-2000

Law Offices of Nelva Gonzales Ramos
616 South Tancahua Street
Corpus Christi, Texas 78401
Solo Practitioner

1997- 1999
City of Corpus Christi
120 North Chaparral Street
Corpus Christi, Texas 78401
Municipal Court Judge

1991 -1997

Meredith, Donnell & Abemethy
555 North Carancahua Street #400
Corpus Christi, Texas 78478
Attorney

Spring 1991

Texas Supreme Court

Justice Lloyd Doggett

201 West 14 lh Street, Room 104

Austin, Texas 78701

Intern

Summer 1 99 0

Meredith, Donnell & Abemethy
555 North Carancahua Street #400
Corpus Christi, Texas 78478
Law Clerk

Summer 1989
Atlas & Hall
818 Pecan Boulevard
McAllen, Texas 78501
Law Clerk

1987- 1988

Southwest Texas State University
College of Education - Bilingual Department
601 University Drive
San Marcos, Texas 78666
Student Secretary

2

110

Spring 1988

Southwest Texas State University
University Attorney
601 University Drive
San Marcos, Texas 78666
Intern

Summer 1988
Calhoun High School
201 Sandcrab Boulevard
Port Lavaca, Texas 77979
Teacher’s Aide

Other A ffi liations (uncompensated, unless otherwise indicated!

2001 - present

Nueces County Juvenile Board
901 Leopard Street
Corpus Christi, Texas 78401
Board Member (receive stipend)

2005 -2007

Council on Alcohol & Drug Abuse - Coastal Bend
1801 South Alameda Street, Suite 150
Corpus Christi, Texas 78404
Board Member (2005 - 2006)

Vice President (2006 - 2007)

1999- 2005

National Conference for Community & Justice
4541 Everhart Road
Corpus Christi, Texas 78411
Board Member (1999 -2001)

Vice Chair (2002 -2003)

Chair (2003 -2004)

Past Chair (2004 - 2005)

2000 - 2001

Hispanic Women’s Network of Texas, Corpus Christi chapter
7910 Galilee Circle
Corpus Christi, Texas 78413
Parliamentarian/Board Member

1995- 1996

Mexican American Bar Association (Coastal Bend) (no longer in existence)
Secretary (1995 - 1996)

3

Ill

1994-1996

Corpus Christi Young Lawyers Association
555 North Carancahua, Suite 260
Corpus Christi, Texas 78478
Secretary (1995 - 1996)

Board of Directors (1994 — 1996)

1993- 1995

March of Dimes, Corpus Christi chapter
4455 South Padre Island Drive, #1 14
Corpus Christi, Texas 7841 1
Board ofDirectors (1993 - 1995)

Chapter Counsel (1994 — 1995)

7. Military Service and Draft Status : Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service,

I have not served in the military and have not registered for selective service.

8. Honors and Awards ; List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.

Highest Rated District Court Judge - Judicial Evaluation Poll (2002, 2003, 2007)

Judicial Leadership Award (2003)

Las Estrellas Award - Outstanding Achievement in the Area of Law (2002)

President’s Scholarship - University of Texas School of Law (1988 - 1991)

Dean’s List (1983 - 1987)

Outstanding College Students of America (1988)

Pi Omega Pi (Business Education Honor Society - 1986)

Golden Key National Honor Society (1985)

Alpha Lambda Delta (National Honor Society - 1984)

Phi Eta Sigma (National Honor Society - 1984)

LULAC National Scholarship (1983)

Order of the Golden Pincher Scholarship (1983)

9. Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.

Coastal Bend Women Lawyers Association (occasional member from 1995 - present)
Corpus Christi Bar Association (1991 - present)

Liaison to Unauthorized Practice of Law Committee (2001 - present)

4

112

Corpus Christi Young Lawyers Association (1991 - 1997)

Secretary (1995- 1 996)

Board of Directors (1994 - 1996)

Liaison to Corpus Christi Independent School District’s Mentor Program (1995 -
1996)

Mexican American Bar Association (Coastal Bend) (1994 - 1 996)

Secretary (1995 - 1996)

State Bar of Texas (1991 -present)

Texas Center for the Judiciary (2001 - present)

Special Events & Fundraising Committee (2009)

10. Bar and Court Admission :

a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.

State Bar of Texas, 1991

There has been no lapse in membership.

b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
in membership. Give the same information for administrative bodies that require
special admission to practice.

United States District Court for the Southern District of Texas, 1992
Texas State Courts, 1991

There has been no lapse in membership.

1 1 . Memberships :

a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 10 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership or participation, and indicate any office you held.
Include clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.

Coastal Bend Chapter of Texas Democratic Women (2003 - present)

Council on Alcohol & Drug Abuse - Coastal Bend (2005 - 2007)

Board Member (2005 - 2006)

Vice President (2006 - 2007)

Gulf Coast Council of La Raza Advisory Committee (1998 - 1999)

Hispanic Women’s Network of Texas, Corpus Christi chapter (1999 - 2003)
Parliamentarian/Board Member (2000 - 2001)

5

113

Leadership Corpus Christi (1998 - 1999)

March of Dimes, Corpus Christi chapter (1993 - 1995)

Board of Directors (1993 - 1995)

Chapter Counsel (1994 - ) 995)

National Conference for Community & Justice, Corpus Christi chapter (1999 —
2005)

Chair (2003 - 2004)

Vice Chair (2002 - 2003)

Nueces County Bail Bond Board (2001 -2002)

Nueces County Council of Judges (2001 - present)

Local Administrative Judge (2007 - 2008)

Jury Selection Revision Committee (2005 - present)

Local Rules Revision Committee (2005 - 2007)

Nueces County Juvenile Board (2001 - present)

Nueces County Purchasing Board (2007 - present)

Texas Bar Foundation Fellow (2006 - present)

b. The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion, or national
origin. Indicate whether any of these organizations listed in response to 1 la above
currently discriminate or formerly discriminated on the basis of race, sex, religion
or national origin either through formal membership requirements or the practical
implementation of membership policies. If so, describe any action you have taken
to change these policies and practices.

To my knowledge, none of the organizations listed in response to 1 la above
currently discriminates or formerly discriminated based on race, sex, religion, or
national origin.

12. Published Writings and Public Statements :

a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Supply four (4) copies of all published
material to the Committee.

On May 23, 2003, 1 submitted a letter to the editor of the Corpus Christi Caller-
Times as Incoming Chair of the National Conference for Community and Justice.
Copy supplied.

On November 29, 2000, 1 submitted a letter to the editor of the Corpus Christi
Caller-Times to thank residents who voted for me in my 347 ,h District Court race.
Copy supplied.

6

114

In 2000, while running for my judgeship, I responded to questionnaires from the
League of Women Voters. Copies of the questionnaires are supplied.

b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, give the
name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.

None that I can recall or have been able to identify.

c. Supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.

March 23, 2007: As the presiding judge of the Council of District Judges of
Nueces County, I sent a letter urging state officials to oppose SB 1204/HB 2906.
The officials to whom the letter was sent were Representatives Abel Herrero, Juan
M. Garcia, Solomon Ortiz, Jr.; Senator Juan JJinojosa; and the state Senate
Committee on State Affairs. Copies of the letter are supplied.

d. Supply four (4) copies, transcripts or recordings of ail speeches or talks delivered
by you, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk. If you do not have a copy of the speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.
If you did not speak from a prepared text, furnish a copy of any outline or notes
from which you spoke.

I have searched my files, calendars, and the internet in an attempt to respond as
thoroughly as possible. Nonetheless, there may be other speeches or talks that I
have been unable to recall or identify.

Talks or Panel Discussions at Legal Seminars:

November 6, 2009: Advanced Personal Injury Law Seminar, Corpus Christi Bar
Association, panel discussion regarding summary judgments, pretrial conferences,
and civil jury trials. I have no notes, transcript, or recording. The address of the
Bar Association is 555 North Carancahua Street #260, Corpus Christi, Texas
78478.

7

115

July 31, 2009: Texas Bar CLE, Advanced Civil Trial Course, Do’s and Don’ts
From the State Judges. Presentation slides supplied and recording available at
htln://www. le ealspan. com/txbar/xseminars/main. aspTsServerName —www. Texas B
arCLE.com&lEventID=9110&SeminurID=91 1 0&lContactID=3250&sStalus=Q
QO. ~ ~

May 28, 2009: Baseball with the Bench, Corpus Christi Young Lawyers
Association, question and answer session regarding voir dire, court rules,
discovery issues, and other pretrial matters. 1 have no notes, transcript, or
recording, but Corpus Christi Bar Association coverage is supplied. The address
of the Bar Association is 555 North Carancahua Street #260, Corpus Christi,
Texas 78478.

April 30, 2009: Soaking Up Some CLE: A South Texas Litigation Seminar, Tips
and Traps. Presentation slide supplied and recording is available at
hlln. /f www. htrolsncm.com/lxbar/xseminars/main aso?sServerName—www. TexasB
arCLF.x o m&lEventlD= 88 65&Seminai'lD=8865&IContactID=3250&sStalus=O
QO . ~~ ~ ~

August 1, 2007: Texas Bar CLE, Advanced Personal Injury Law Course 2007,
Pattern Jury Charge. Course scenario supplied and recording available at
hrtD://www.leealsnan.cnm/lxbar/xseminars//nain.aso?sServerName=www.TexaxB
arCLE.com&lEvcnlID=742l<SrSeminarID=742]&lContactID=3250&sStatus=O
QO.

October 2006: Advanced Personal Injury Law Seminar, Corpus Christi Bar
Association, Thoughts From the Bench on How Lawyers Waste Their Own Time
in Voir Dire. A copy is supplied.

Talks or Remarks to Civic Organizations. Students, and Church Groups:

October 16, 2010: Saint Patrick’s Catholic Church, Women’s Day Retreat, talk on
peace. A copy is supplied.

April 13, 2007: Corpus Christi Young Lawyers Association Kids Law Library
Dedication ceremony, Los Encinos Elementary School. I have no notes,
transcript or recording, but Corpus Christi Bar Association coverage is supplied.
The address of the Bar Association is 555 North Carancahua Street, Suite 260,
Tower II, Corpus Christi, Texas 78478.

November 19, 2005: Northside Juneteenth Ceremony, Corpus Christi Juneteenth
Coalition, remarks honoring Reverend Arthur Lane of St. Matthew Baptist
Church. I have no notes, transcript or recording, but press coverage is supplied.
The address of the Coalition is Coles High School & Education Center,
Memorabilia Room, 924 Winnbago Street, Corpus Christi, Texas 78401.

8

116

October 16, 2004: Labor Council for Latin American Advancement Awards
ceremony, remarks upon receiving an award for being a community leader. I
have no notes, transcript or recording, but press coverage is supplied. The address
of the Council is 815 16 ,h Street, NW, 4 th Floor, Washington, DC 20006.

February 2004: National Conference for Community and Justice Humanitarian
Awards Dinner, remarks as Chair. A copy of my remarks is supplied.

2004: National Conference for Community and Justice Walk as One Lunch,
remarks regarding mission and history of the organization. I do not recall the
exact date or location. A copy is supplied.

2004: Teenage Mothers School, remarks to students about education. I have no
notes, transcript, or recording. The address of the school is 3109 Carver Drive,
Corpus Christi, Texas 78405.

April 24, 2003: American G.I. Forum Awards ceremony, Omni Bayfront Hotel. I
gave brief remarks to thank the organization and my family. I have no notes,
transcript, or recording, but press coverage is supplied. The address of the
American G.I. Forum is N. Speer Boulevard, #1 03, Denver, Colorado 8021 1 .

January 2002 and 2001: National Conference for Community and Justice
Humanitarian Awards Dinner, remarks regarding mission and history of the
organization. Copies of my remarks are supplied.

October 24, 2001 : Learning Zone, Corpus Christi Independent School District,
question and answer session regarding local government. The program was
recorded at Title I Studio and aired on October 3 1 and November 1 4, 2001 on
KZTV10. A DVD is supplied.

May 2001: Flour Bluff High School, Spanish National Honor Society, remarks
regarding education and benefits of speaking a second language. I have no notes,
transcript, or recording. The address of the school is 2505 Waldron Road, Corpus
Christi, Texas 78418.

200 1 : Rotary Club, talk regarding jury service. I do not recall exact date or
location. A copy of my remarks is supplied.

2001: Del Mar College, Criminal Justice Students, talk regarding campaigns. An
outline is supplied.

2001 : Substance Abuse Treatment Facility, addressed graduates who had been
court ordered to the substance abuse treatment program. I discussed treatment,
success, and community supervision. I have no notes, transcript, or recording.

The address of the facility is 745 North Padre Island Drive, Corpus Christi, Texas
78406.

9

117

2000: G.I. Forum Scholarship Banquet, remarks regarding education. [ do not
recall exact date or location. I have no notes, transcript, or recording. The
address of the American G.I. Forum is N. Speer Boulevard, #103, Denver,
Colorado 802 1 1 .

1998: Del Mar College, Criminal Justice Students, talk regarding municipal court
system. An outline is supplied.

I have spoken to other organizations and groups such as bar associations. Boy
Scout troops, new attorneys, and new probation officers. However, I do not recall
any specific instances, and have not maintained any written materials. Generally,
I would address topics such as our system of justice, the role of a judge, rules of
court, testifying in court, education, and careers.

When I campaigned for judicial office (1999 — 2000), I spoke to various civic and
professional organizations such as rotary clubs, bar associations, labor unions,
coffee clubs, booster clubs. Corpus Christi Police Officers Association, Fraternal
Order of Police, and Leadership Corpus Christi. I appeared on local radio and
television talk shows such as South Texas Politics, Voices of the Coastal Bend,
and Comentarios. 1 also participated in forums, including one on November l,
2000 at the Doctors Regional Conference Center. I have been unable to recall the
dates of my other public events. At all events, however, I generally spoke
regarding my qualifications, experience, and community involvement. 1 have no
notes, transcripts or recordings from these events. In addition, although it is
possible that some of the radio and television recordings may still exist, 1 have
been unable to obtain copies of them because I do not know the dates of the
interviews.

e. List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.

I searched my files, calendars, and the internet to respond as thoroughly as
possible. The following are interviews I have given and articles in which 1 have
been quoted, although there may be others that I have been unable to recall or
identify:

Staff, District 27 Candidates Have Different Fundraising Strategies , Corpus
Christi Caller-Times, Mar. 28, 2010. Copy supplied.

Mary Ann Cavazos, Instructions to Jurors Change with Social Media; Trials
Could be Undone by Online Posts , Corpus Christi Caller-Times, Jan. 25, 2010.
Copy supplied.

10

118

I was asked to comment on the Friday Night Corpus Christi event, which took
place on November 1 7, 2009. Copy supplied.

Court Targets Domestic Abuse Cases, Corpus Christi Caller-Times, Sept. 14,
2009. Copy supplied.

Mary Ann Cavazos, Court Takes Domestic Abusers to Task, Corpus Christi
Caller-Times, Sept. 8, 2009. Copy supplied.

Mary Ann Cavazos, Nueces County Refines Jury Duly Efforts, Corpus Christi
Caller-Times, June 28, 2009. Copy supplied.

Mary Ann Cavazos, New Court Helps Move Inmates Out of County Jail, Corpus
Christi Caller-Times, Nov. 2, 2008. Copy supplied.

Mary Ann Cavazos, Visiting Judge to Hear Juvenile Cases for Now, Corpus
Christi Caller-Times, Oct. 28, 2008. Copy supplied.

Jaime Powell, County Stops Using Courthouse Holding Cells, Corpus Christi
Caller-Times, June 25, 2008. Copy supplied.

Staff, Courthouse Cells Too Small in Nueces County, Associated Press, June 25,
2008. Copy supplied.

Jaime Powell, Holding Cells Are Too Small, Corpus Christi Caller-Times, June
24, 2008. Copy supplied.

Jaime Powell, State to Investigate Courthouse Cells, Corpus Christi Caller-Times,
June 21, 2008. Copy supplied.

Mary Ann Cavazos, Many Skip Jury Duty Despite Options, Corpus Christi Caller-
Times, May 19, 2008. Copy supplied.

Barbara Ramirez, Gonzales Ramos Named Presiding District Judge, Corpus
Christi Caller-Times, Jan. 18,2007. Copy supplied.

David Kassabian, Program Aims to Speed Up Jury Selection, Corpus Christi
Caller-Times, Oct. 2, 2006. Copy supplied.

Sara Lee Fernandez, Soon, Jurors May Check Their Eligibility Online, Corpus-
Christi Caller-Times, Apr. 22, 2006. Copy supplied.

Mike Baird, Inmate: Sanchez Spoke of Victim; Witness Denies, then Admits, Deal
for his Testimony, Corpus Christi Caller-Times, Mar. 23, 2006. Copy supplied.

11

119

Sara Lee Fernandez, Absent Jurors Hinder System , Corpus Christi Caller-Times,
Feb. 27, 2006. Copy supplied.

Tim Eaton, Rites for Filemon Vela Today, Friday , Corpus Christi Caller-Times,
Apr. 15, 2004. Copy supplied.

J.R. Gonzales, State District Judge Seeks Another Term in 2004 , Corpus Christi
Caller-Times, June 24, 2003. Copy supplied.

J.R. Gonzales, Area Federal Judges Fair, Courteous, Poll Says, Corpus Christi
Caller-Times, June 23, 2003. Copy supplied.

J.R. Gonzales, A Second Gang-Fighting Prosecutor, Corpus Christi Caller-Times,
Mar. 29, 2003. Copy supplied.

J.R. Gonzales, New Lawyer-Appointment Plan Relies on List to Avoid Bias,
Corpus Christi Caller-Times, Feb. 10, 2003. Copy supplied.

J.R. Gonzales, Lawyers Rank flow Judges Perform, Corpus Christi Caller-Times,
Sept. 17,2002. Copy supplied.

Staff, Win) 's the Most Beautiful, Corpus Christi Caller-Times, July 21, 2002.

Copy supplied.

Caroline Bertuzzi, Spotlight: 347th District Judge: Nelva Gonzales Ramos,
Corpus Christi Lawyer, Spring 2001. Copy supplied.

Dan Parker, Hispanic Women Gaining Prominence in Court ; Nueces County
District Judges Reflect Diverse Community, Corpus Christi Caller-Times, Jan. 1,
2001. Copy supplied.

Stephanie L. Jordan, Gonzales Ramos Wins 347"' District Judgeship, Corpus
Christi Caller-Times, Nov. 8, 2000. Copy supplied.

Jason Ma and Guy H. Lawrence, Area Democrats Have Big Warchests, Corpus
Christi Caller-Times, Oct. 25, 2000. Copy supplied.

Jason Ma, 347 lh Judge Candidates Cite Experience, Service, Corpus Christi
Caller-Times, Oct. 22, 2000. Copy supplied.

Jason Ma, With Issues Off Limits, Candidates Tout Experience, Corpus Christi
Caller-Times, Oct. 4, 2000. Copy supplied.

Venessa Santos, Narrow Win for 347lh Nomination; Democrat Gonzales Ramos
Faces Medary in November, Corpus Christi Caller-Times, Mar.15, 2000. Copy
supplied.

12

120

Cynthia Hodnett, Court Candidates Assert their Expertise; Nelva Gomales-
Ramos, Lisa Gonzales Campaigning for the 347' 1 ' District Court , Corpus Christi
Caller-Times, Feb. 20, 2000, at Cl. Copy supplied.

Staff, Gonzalez Chooses Seat with Less Familiar Names, Corpus Christi Caller-
Times, Feb. 20, 2000, at C] . Copy supplied.

James A. Suydam, Local Mechanic Fights City Hall, Wins , Corpus Christi Caller-
Times, Aug. 17, 1999. Copy supplied.

Jennifer Stump, Gonzales-Ramos to Seek 347' 1 ' District Court Post, Corpus
Christi Caller-Times, July 9, 1999. Copy supplied.

Jim Day, Judge Gets Truants to School for Unconventional Lessons, Corpus
Christi Caller-Times, Apr. 9, 1998. Copy supplied.

I have also been interviewed by local television stations (Kill TV3, KRIS TV,
and KZTV10) regarding jury duty, jail court, the condition of courthouse holding
cells, domestic violence court, courthouse security, and court appointed attorneys.
I was also interviewed by these stations during my campaign regarding my
qualifications and experience. Although it is possible that some of these
recordings may still exist, I have been unable to obtain copies of them. If I am
able to obtain copies of them in the future, I will provide them.

On August 6 and November 3, 2009, 1 appeared on the local radio talk shows of
Comentarios and La Voz con Abel Alonzo. 1 spoke about my background, my
job, and the importance of an education. These interviews were not recorded.

13. Judicial Office : State (chronologically) any judicial offices you have held, including
positions as an administrative law judge, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.

Municipal Court Judge - City of Corpus Christi
Appointed (1997 - 1 999)

Criminal Jurisdiction - Class C misdemeanors, violations of city ordinances

District Court Judge - 347 th Judicial District
Elected (2001 - present)

General Jurisdiction - civil, felony, and family cases

a. Approximately how many cases have you presided over that have gone to verdict
or judgment?

As a Municipal Court Judge, I presided over 500 cases that went to verdict or
judgment. As a District Court Judge, I have presided over 1200 cases that went

13

121

to verdict or judgment.

i. Of these, approximately what percent were:

jury trials? 1 0%

bench trials? 90%

civil proceedings? 55%

criminal proceedings? 45%

b. Provide citations for all opinions you have written, including concurrences and
dissents.

As a trial court judge, I do not issue opinions.

c. For each of the 10 most significant cases over which you presided, provide: (1) a
capsule summary of the nature the case; (2) the outcome of the case; (3) the name
and contact information for counsel who had a significant role in the trial of the
case; and (3) the citation of the case (if reported) or the docket number and a copy
of the opinion or judgment (if not reported).

1. Perez v. Alanis . No. 04-08-00276-CV (Tex. App. - San Antonio August 13, 2008,
no pet.) (not reported), 2008 WL 3457035.

This case involved an election contest in Jim Wells County, Texas. I was
assigned to hear the case by the Presiding Judge of the Fifth Administrative
Judicial Region. Perez challenged incumbent Alanis for the position of Precinct 3
commissioner. Perez won the election by a margin of two votes. Alanis filed an
election contest claiming that several voters who resided in precinct 3 were
incorrectly placed in a different precinct and thus were unable to vote in precinct
3. I declared the election void, finding that two voters were prevented from
voting for Alanis because they were mistakenly placed in other precincts by the
County Elections Administrator. This mistake materially affected the outcome of
the election. The case was affirmed on appeal.

Counsel:

Phil Westergren
1750 Santa Fe Street
Corpus Christi, Texas 78404
(361) 883-6807

Michael Garcia

1600 East Main Street, Suite 227
Alice, Texas 78332
(361)668-4989

14

122

Jaime Omar Garza

2477 South Federal Highway 281

Alice, Texas 78332

(361)664-8251

Bobby Bourlon

The Bourlon Law Firm

1600 East Main Street, Suite 227

Alice, Texas 78332

(361)664-1000

2. Christus Spohn Health System Coro, v. DeLaFuente . No. 13-04-00485-CV (Tex.
App. - Corpus Christi August 16, 2007, pet. granted, judgm’t vacated w.r.m.) (not
reported), 2007 WL 2323989.

This was a medical malpractice case involving the delivery of an infant who
sustained profound brain damage from loss of oxygen. The defendant doctor
settled and the case proceeded to trial against the hospital. After a two and a half
week trial, the jury reached a verdict in favor of the plaintiffs and awarded
damages of almost ten million dollars.

Counsel:

Mark R. Mueller
Mueller Law Offices
404 West 7 lh Street
Austin, Texas 78701
(512)478-1236

Robert J. Swift
Fulbright & Jaworski, L.L.P.

1301 McKinney, Suite 5100
Houston, Texas 77010
(713) 651-5151

Ben A. Donnell

Donnell, Abemcthy & Kieschnick
555 North Carancahua Street #400
Corpus Christi, Texas 78478
(361) 888-5551

3. Horton v. Lone Star Indus.. Inc .. 01-4284-H, (347 th Judicial District, Nueces
County, Texas).

This was the first silicosis case tried in Nueces County. The plaintiffs sued the
manufacturers and suppliers of silica dust under theories of products liability,
including design, marketing, and manufacturing defects; breach of implied

15

123

warranty; breach of express warranty; and negligence. After either settling with
or dismissing most of the defendants, the plaintiffs proceeded to trial against the
defendant, Lone Star Industries, Inc. After a two week trial, the parties settled
while the jury was deliberating.

Counsel:

Jason Gibson

363 North Sam Houston Parkway H, Suite 1 100

Houston, Texas 77060

(713)650-1010

James L. Ware

Sheehy, Serpe & Ware, P.C.

2500 Two Houston Center
909 Fannin Street
Houston, Texas 77010
(713)951-1000

Rudy Gonzales

Hilliard & Munoz

719 South Shoreline Boulevard

Corpus Christi, Texas 78401

(361)882-1612

4. Cygan v. Traveler’s Ins. Co, . 00-2608-H, (347 lh Judicial District, Nueces County,
Texas).

This case involved a suit against an insurance company by its insured
and against the law firm the insurance company retained for subrogation
purposes. The basis of the suit was a fire that destroyed the plaintiffs’ home. The
plaintiffs made claims for breach of the duty of good faith and fair dealing, breach
of fiduciary duty, violations of the Deceptive Trade Practices Act, negligent
misrepresentation, negligence, gross negligence, and conspiracy. The law firm
settled and the case proceeded to trial against the insurance company. After a two
week trial, the jury reached a verdict in favor of the plaintiffs and awarded
damages of over two million dollars. The case was later settled.

Counsel:

James Harris
Andrew Greenwell
Harris & Greenwell, L.L.P.

800 North Shoreline, Suite 2800
Corpus Christi, Texas 78401
(361)883-1946

16

124

Mark A. Lindow
600 Navarro Street, 6 ,h Floor
San Antonio, Texas 78205
(210) 227-2200

Carlos Villarreal

Hermansen, McKibben, Woolsey & Villarreal, L.L.P.

1 100 Tower II

555 North Carancahua Street
Corpus Christi, Texas 78478
(361)882-6611

5- Texas v. Aguilar . 95-CR-1729-H, (347 th Judicial District, Nueces County, Texas).

This was a murder case in which a daughter was accused of killing her father.

The case was tried in 1997 before I took the bench. The jury convicted the
defendant and her stepmother of the murder and sentenced each to 25 years in
prison. After being in prison for many years, the defendant daughter made
allegations of ineffective assistance of counsel. The Texas Court of Criminal
Appeals ordered me to conduct a hearing regarding these claims and later
reversed the case, finding that trial counsel had been ineffective. I conducted the
second trial in 2009 and the jury found the defendant daughter not guilty.

Counsel:

Rick Rogers
710 Buffalo Street #202
Corpus Christi, Texas 78401
(361) 888-7620

Vincent Gonzalez

606 North Carancahua Street, Suite 506
Corpus Christi, Texas 78476
(361)883-9966

Josh Schaffer

1301 McKinney Street, Suite 3100
Houston, Texas 77010
(713)951-9555

6. Texas v. Flowers. 07-CR-2759-H, (347”' Judicial District, Nueces County, Texas).

In this case, two officials from a Christian boot camp were accused of dragging a
1 5 year old girl behind a van with a rope. They were charged with aggravated
assault. Because of defects in the indictment, the case proceeded to trial as a
misdemeanor assault. After a two week trial, the jury was unable to reach a

17

125

verdict on either defendant so I declared a mistrial. The case has now been filed
in misdemeanor court.

Counsel:

Mike Gordon
90 1 Leopard Street #206
Corpus Christi, Texas 78401
(361) 888-0410

Jimmy Parks

214 Dwyer Avenue, Suite 210
San Antonio, Texas 78204
(210)229-1322

Brent DeLaPaz
214 Dwyer Avenue, Suite 210
San Antonio, Texas 78204
(210) 568-7499

Ed Camara
P.O. Box 6130

San Antonio, Texas 78209-0130
(210)223-5893

7. Texas v. Caldwell. 07-CR-3037-H, (347 lh Judicial District, Nueces County,
Texas).

This case involved a drug deal where two individuals were killed. The grand jury
indicted the defendant for delivery of marijuana and tampering with physical
evidence, but did not indict him for murder. The defendant pleaded guilty to the
delivery charge and not guilty to the two counts of tampering. The jury found the
defendant guilty of one of the tampering counts and assessed a five year sentence.
The jury also assessed a two year sentence on the delivery charge. The jury
recommended that the sentences be suspended so the defendant was placed on
community supervision.

Counsel:

Doug Mann

90 1 Leopard Street #206
Corpus Christi, Texas 78401
(361) 888-0410

Kenneth Botary
615 Leopard Street, Suite 836
Corpus Christi, Texas 78401
(361)884-3774

18

126

8. Helgerson v. State . No. 13-07-359-CR (Tex. App. - Corpus Christi August 28,
2008, pet. ref d), cert, denied, 130 S. Ct. 301 (2009) (not designated for
publication), 2008 WL 5179734.

The defendant in this case was charged with three counts of intoxication
manslaughter and one count of intoxication assault. The victims were siblings.
The defendant pleaded guilty and requested a jury trial for punishment. The jury
assessed the maximum sentence of 20 years on each of the intoxication
manslaughter charges and of ten years on the intoxication assault charge. I ran
the 20 year sentences consecutively and the ten year sentence concurrently. This
resulted in a 60 year sentence. The case was affirmed by the Court of Appeals in
an unpublished opinion. (2008 WL 5 1 79734). The petition for discretionary
review was refused by the Texas Court of Criminal Appeals on March 1 1, 2009.
Certiorari was denied by the Supreme Court on October 5, 2009 (BOS. Ct. 301
(2009).

Counsel:

Frank Errico
901 Leopard Street #206
Corpus Christi, Texas 78401
(361) 888-0410

Rick Rogers
7 1 0 Buffalo Street #202
Corpus Christi, Texas 78401
(361) 888-7620

9. Gonzalez v. State . 115 S.W.3d 278 (Tex. App. -Corpus Christi 2003, pet. refd.);
Gonzalez v. State . No. 13-05-1 15-CR (Tex. App. - Corpus Christi, March 2,
2006, no pet.) (not designated for publication), 2006 WL 488681.

This case involved a gang related murder. After the defendant was found guilty
of murder and engaging in organized criminal activity, he attacked the prosecutor
outside the presence of the jury. During closing arguments in the punishment
phase of the trial, the State compared the defendant to Osama bin Laden. I
sustained the defendant’s objection to this argument, but denied a request for a
mistrial. 1 instructed the jury to disregard the argument. The State then
proceeded to compare the defendant's gang to al-Qaeda. The jury assessed
punishment of life in prison. The Court of Appeals reversed the punishment
phase of the trial because of the State’s argument. The defendant was retried on
punishment only and he was again sentenced to life in prison.

19

127

Counsel:

James Sales

105 West Corpus Christi Street #305
Beeville, Texas 78102
(361)358-1007

Carlos Valde 2
1201 Leopard Street
Corpus Christi, Texas 78401
(361)826-3878

Grant Jones
5826 Beauvais Drive
Corpus Christi, Texas 78414
(361)815-2470

Gerald Rogen
500 North Water, Suite 608
Corpus Christi, Texas 78741
(361) 884-4224

10. Texas v, Spanuttus . 08-CR-1896-H, 347th Judicial District, Nueces County,
Texas.

The defendant in this case was charged with the murder of Amy Ignatowski, a
member of the Coast Guard. The State alleged that the defendant followed
Ignatowski home after meeting her in a bar and then strangled her. The defendant
claimed that he and Ignatowski got into a fight. He put her in a headlock to calm
her down and she then passed out and died. The jury was instructed to consider
whether the defendant was guilty of murder, manslaughter or criminally negligent
homicide. After finding the defendant guilty of murder, the jury assessed a
sentence of 30 years.

Counsel:

Mike Gordon
90 1 Leopard Street #206
Corpus Christi, Texas 78401
(361) 888-0410

John Gilmore
622 South Tancahua
Corpus Christi, Texas 78401
(361)882-4378

20

128

Chris Dorsey

606 North Carancahua, Suite 1 001
Corpus Christi, Texas 78476
(361) 882-9991

d. For each ofthe 10 most significant opinions you have written, provide: (1)
citations for those decisions that were published; (2) a copy of those decisions that
were not published; and (3) the names and contact information for the attorneys
who played a significant role in the case.

As a trial court judge, I do not issue opinions.

e. Provide a list of all cases in which certiorari was requested or granted.

Hekerson v. State . No. 1 3-07-3S9-CR (Tex. App. - Corpus Christi August 28,
2008, pet. ref d), cert, denied , 130 S. Ct. 301 (2009) (not designated for
publication), 2008 WL 5 179734.

f. Provide a brief summary of and citations for all of your opinions where your
decisions were reversed by a reviewing court or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings. If
any of the opinions listed were not officially reported, provide copies of the
opinions.

As a trial court judge, I do not issue opinions. The following are cases in which
an appellate court has reversed either my decisions or the decisions of the jury in
a case over which I presided.

Cr ossland v. Berry. No. 13-10-217-CV (Tex. App. - Corpus Christi December 9,
2010) (not reported) 2010 WL 5020501. I granted defendant’s no-evidence
motion for summary judgment because plaintiffs failed to tender any evidence
that they had a right to indemnity from defendant. The Court of Appeals
reversed, holding that defendant’s motion for summary judgment was insufficient
because it did not set forth specifically the elements for which plaintiffs could
produce no evidence.

Ballesteros v. Nueces County . 286 S.W.3d 566 (Tex. App. - Corpus Christi 2009,
no pet. h.). Ballesteros sued Nueces County claiming he was fired for filing a
worker’s compensation claim. Nueces County filed a plea to the jurisdiction and
motion to dismiss, arguing that Ballesteros failed to comply with section 89.0041
of the Local Government Code regarding notice to a county of a lawsuit. I
granted the plea and motion. The Court of Appeals initially affirmed my
decision, but on rehearing reversed it, holding that Ballesteros had substantially
complied with the statute

21

129

State v. Maldonado, 259 S.W.3d 184 (Tex. Crim, App. 2008). I granted
defendant’s motion to suppress his confession and the State appealed. The issue
was whether the defendant or the police had initiated the communication in
question. The Court of Appeals reversed my decision and the Court of Criminal
Appeals affirmed the reversal in a two to one opinion.

Western Steel Co.. Inc v. Altenburg . No. 13-02-450-CV (Tex. App. - Corpus
Christi April 10, 2008, no pet.) (not reported), 2008 WL 963677. The jury found
that the plaintiff was not the defendant’s borrowed employee. The defendant
appealed, claiming that the evidence was legally and factually insufficient to
support this finding. The Court of Appeals initially affirmed the judgment, but
the Texas Supreme Court reversed and remanded the case to the Court of
Appeals, instructing the court to consider the sufficiency challenges. The Court
of Appeals then reversed the judgment, holding that the evidence was legally
insufficient to support the jury’s finding.

El Paso South Texas v. Bay. LTD . No. 13-06-186-CV (Tex. App. - Corpus
Christi December 6, 2007, pet. denied) (not reported), 2007 WL 4260523. Bay,
LTD was the general contractor for the construction of a storage tank. El Paso
sought indemnification from Bay for money owed to a subcontractor for materials
and labor provided to paint the tank. There were multiple causes of action,
counterclaims, and cross-claims between the parties. I granted Bay’s motion for
summary judgment, finding that El Paso was not entitled to indemnification from
Bay. The Court of Appeals reversed my decision.

Christus Spohn Health Svs. Corn, v. DeLaFuente. No. 13-O4-O0485-CV (Tex.
App. - Corpus Christi August 16, 2007, pet. granted, judgm’t vacated w.r.m.) (not
reported), 2007 WL 2323989. This was a medical malpractice case involving the
delivery of an infant who sustained profound brain damage from loss of oxygen.
The plaintiffs sued the obstetrician and the hospital. The defendant doctor settled
prior to trial. The jury found that the hospital was negligent and awarded
damages of almost ten million dollars. The hospital appealed and the Court of
Appeals modified the judgment to vacate the award of mental anguish damages.

Texas Dep’t of Public Safety v. Jimenez . No, 13-03-506 (Tex. App. - Corpus
Christi August 1 9, 2004, no pet.) (not reported), 2004 WL 1 852972. Jimenez
filed a petition to expunge his arrest records because the indictment had been
dismissed. 1 granted the petition and the Texas Department of Public Safety
appealed. The Court of Appeals vacated the expunction order, holding that there
was no evidence that the indictment had been dismissed due to a lack of probable
cause.

Gonzalez v. State , 1 15 S.W.3d 278 (Tex. App. - Corpus Christi 2004, pet. ref’d).
The defendant was convicted of murder and engaging in organized criminal
activity and sentenced to life in prison for each offense. In closing arguments
during the punishment phase of the trial, the prosecutor compared the defendant

22

130

to Osama bin Ladin. The defendant’s attorney objected and asked for a mistrial.

I sustained the objection, denied the request for mistrial, and instructed the jury to
disregard the argument. The prosecutor then proceeded to compare the
defendant s gang to al-Qaeda. The Court of Appeals held that the argument was
improper and harmful. Thus, it reversed and remanded the case for a new trial on
punishment.

g. Provide a description of the number and percentage of your decisions in which
you issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored,

As a trial court judge, I do not issue opinions.

h. Provide citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, provide copies of the opinions.

As a trial court judge, I do not issue opinions.

i. Provide citations to all cases in which you sat by designation on a federal court of
appeals, including a brief summary of any opinions you authored, whether
majority, dissenting, or concurring, and any dissenting opinions you joined.

I have not sat by designation on a federal court of appeals.

14. Recusal: If you are or have been a judge, identify the basis by which you have assessed
the necessity or propriety of recusal (If your court employs an "automatic" recusal system
by which you may be recused without your knowledge, please include a general
description of that system.) Provide a list of any cases, motions or matters that have
come before you in which a litigant or party has requested that you recuse yourself due to
an asserted conflict of interest or in which you have recused yourself sua sponte. Identify
each such case, and for each provide the following information:

a. whether your recusal was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any other person or interested party; or if you
recused yourself sua sponte;

b. a brief description of the asserted conflict of interest or other ground for recusal;

c. the procedure you followed in determining whether or not to recuse yourself;

d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any
other ground for recusal.

I follow Texas Rule of Civil Procedure 1 8b(2) which sets forth when a judge should
recuse himself or herself.

23

131

Texas v. Escobedo . 10-CR-365-F, 214th Judicial District, Nueces County, Texas. 1
recused myself sua sponte because I knew the defendant. I determined that my
impartiality might reasonably be questioned.

Texas v. Amaya . 10-CR-444-B, 1 17th Judicial District, Nueces County, Texas. I
recused myself sua sponte because I knew the defendant. I determined that my
impartiality might reasonably be questioned.

Texas v. Amaro . 06-CR-I8S5-D. 105th Judicial District, Nueces County, Texas. The
defendant in this case was on community supervision. There were allegations that
she made harassing telephone calls to my court reporter. I recused myself sua sponte
because I determined that my impartiality might reasonably be questioned.

Flores-Lamh v. Frost-Gonzales . 09-5837-H, 347th Judicial District, Nueces County,
Texas. The plaintiff filed a motion to recuse me after a ruling on a motion for
sanctions. I forwarded the motion to the Presiding Judge of the Fifth Administrative
Judicial Region. This judge later dismissed the motion.

In Re: An Investigation of an Automobile Accident Involving J. Manuel Banales ,
MISC-CR- 1 -H, 347 m Judicial District, Nueces County, Texas. The automobile
accident in question involved a fellow district court judge who was also the Presiding
Judge of the Fifth Administrative Judicial Region. The District Attorney filed a
Motion to Recuse the District Attorney’s Office and a Motion to Appoint a Special
Prosecutor. The motions were filed in my court because I was the Local
Administrative Judge at the time. I recused myself sua sponte because I determined
that my impartiality might reasonably be questioned.

Garcia v. 5' 1 * Administrative Judicial Region . 09-43-H, 347 lh Judicial District, Nueces
County, Texas. This civil case involved the same automobile accident discussed
above. I recused myself sua sponte because 1 determined that my impartiality might
reasonably be questioned.

Celis v. Henry. 07-5508-H, 347 th Judicial District, Nueces County, Texas. In this
case, the plaintiff filed suit to enjoin the defendant from running television ads stating
that the plaintiff was not licensed to practice law. 1 recused myself sua sponte
because I had personal knowledge of facts that may have been disputed in the
proceeding.

Texas v. Celis. 07-CR-4047-E, 07-CR-4048-E, 07-CR-4049-E, 148 th Judicial District,
Nueces County, Texas. I was assigned by the Presiding Judge of the Fifth
Administrative Judicial Region to hear the issue of bail in these criminal cases after a
fellow district court judge recused herself. The allegations in the criminal cases were
related to the allegations in the civil case discussed directly above. The defendant’s
attorney objected to me hearing the matter because I had previously recused myself

24

132

on the civil case. I recused myself and forwarded the case to the Presiding Judge of
the Fifth Administrative Judicial Region for reassignment.

Texas v. Riggins. 06-CR-360-B, 1 17 lh Judicial District, Nueces County, Texas. In
this case, an attorney was charged with sexual assault of a child. I recused myself sua
sponte because I had personal knowledge of facts that may have been disputed in the
proceeding.

Beverly St. Clair v. Alexander. 06-43 10-D, 1 05 ,h Judicial District, Nueces County,
Texas. This was a medical malpractice case. I informed the attorneys that one of the
partners in Nuerosurgeon Institute of South Texas had served as my campaign
treasurer during the time period that was relevant to the case. The plaintiffs attorney
objected to me presiding over the case so I referred the case to the Local
Administrative Judge for reassignment.

In the Interest of Wisner . 06-2963-D, 1 05 lh Judicial District, Nueces County, Texas. I
recused myself sua sponte because the child who was the subject of the suit was a
classmate of my son and I had personal knowledge of facts that may have been
disputed in the proceeding. This case was not pending in my court, but was sent to
me as the Local Administrative Judge because the judge assigned to the case was on
vacation.

Mauger v. Texas Farmers Ins. Co.. 03-5149-C, 94 ,h Judicial District, Nueces County,
Texas. This was a class action suit in which I informed the attorneys that I was an
insured of the defendant, Texas Farmers Insurance Company. The plaintiffs’ attorney
objected to me presiding over the case so I referred the case to the Local
Administrative Judge for reassignment.

I n the Interest of Cuellar . 97-521 -H, 347 lh Judicial District, Nueces County, Texas. I
recused myself sua sponte because one of the parties is related to my husband. I
determined that my impartiality might reasonably be questioned.

Corona v. Corona . 02-5552-H, 347 ,h Judicial District, Nueces County, Texas. I
recused myself sua sponte because I knew both the petitioner and the respondent in
this divorce case. I determined that my impartiality might reasonably be questioned.

Ca stro v, Nueces County Bail Bond Bd„ 02-6502-H, 347 ,h Judicial District, Nueces
County, Texas. I recused myself sua sponte because I was a member of the Nueces
County Bail Bond Board at the time. I determined that my impartiality might
reasonably be questioned.

Texas v. Carnahan . 01-CR-3833-H, 347 11 ' Judicial District, Nueces County, Texas.

The defendant filed a motion to recuse me on the basis that I had presided over his
divorce case and heard matters regarding the criminal case. I forwarded the recusal
motion to the Presiding Judge of the Fifth Administrative Judicial Region and a judge
was assigned to hear the recusal. The motion was denied.

25

133

Asbestos litigation — When I took the bench in 2001 , there were about 60 asbestos
cases pending in my court. I advised the attorneys that my father was involved in
asbestos litigation as a claimant. In about 15 cases, motions to recuse were filed. 1
referred those cases to the Presiding Judge of the Fifth Administrative Judicial Region
for reassignment.

15- Public Office. Political Activities and Affiliations :

a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, state chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.

I have not held public office other than judicial office. I have had no unsuccessful
candidacies for elective office or unsuccessful nominations for appointed office.

b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election committee. If you have ever
held a position or played a role in a political campaign, identify the particulars of
the campaign, including the candidate, dates of the campaign, your title and
responsibilities.

I have not held office in any political party. I have not held a position or role in a
political campaign other than my campaign for judicial office.

1 6. Legal Career: Answer each part separately.

a. Describe chronologically your law practice and legal experience after graduation
from law school including:

i. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;

I did not serve as a clerk to a judge.

ii. whether you practiced alone, and if so, the addresses and dates;

I was in solo practice from September 1 999 to December 2000. My
address was 616 South Tancahua Street, Corpus Christi, Texas 78401.

iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.

26

134

1991 -1997

Meredith, Donnell & Abernethy
555 North Carancahua Street #400
Corpus Christi, Texas 78478
Attorney

iv. whether you served as a mediator or arbitrator in alternative dispute
resolution proceedings and, if so, a description of the 10 most significant
matters with which you were involved in that capacity.

I have not served as a mediator or arbitrator in alternative dispute
resolution proceedings.

b. Describe:

i. the general character of your law practice and indicate by date when its
character has changed over the years.

As an associate at Meredith, Donnell & Abernethy (1991 - 1997), my
primary areas of practice were in personal injury litigation, employment
litigation, and insurance defense. A small portion of my practice was in
family law and workers compensation.

When I announced my candidacy for District Court Judge (1999), I
resigned my position as a Municipal Court Judge as required by the city
charter. I was in solo practice during the time I campaigned for office. I
did contract work primarily for Constant & Vela, a law firm engaged in
personal injury litigation. (This firm is no longer in existence.) A small
portion of my practice was in family and criminal law and 1 was appointed
by the courts to represent children involved in family and personal injury
cases.

ii. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.

As an associate at Meredith, Donnell & Abernethy (1991 - 1997), I
specialized in personal injury litigation, employment litigation, and
insurance defense. My typical clients were insurance companies,
businesses, corporations, government entities, hospitals, attorneys,
doctors, and other individuals.

While in solo practice (1999 - 2000), I specialized in personal injury
litigation and my typical clients were individuals.

27

135

c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.

My practice was 95% litigation and I appeared in court frequently.

i. Indicate the percentage of your practice in:

1.

federal courts;

5%

2.

state courts of record;

90%

3.

other courts;

3%

4.

administrative agencies

2%

Indicate the percentage of your practice in:

1.

civil proceedings;

98%

2.

criminal proceedings.

2%

d. State the number of cases in courts of record, including cases before

administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.

While in private practice, I tried approximately 17 cases to verdict, judgment or
final decision. I was sole counsel in 8, chief counsel in 2, and associate counsel in
7.

i. What percentage of these trials were:

1. jury; 40%

2. non-jury. 60%

e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any
oral argument transcripts before the Supreme Court in connection with your
practice.

I have not practiced before the Supreme Court of the United States.

17. Litigation : Describe the ten (10) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give a capsule summary of
the substance of each case. Identify the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case:

28

136

a. the date of representation;

b. the name of the court and the name of the judge or judges before whom the case
was litigated; and

c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.

It has been over ten years since I have had an active private practice. The firm I worked
for has a file retention policy of seven years. Therefore, the files I worked on are no
longer available for review. The following arc cases I recall working on and in which 1
have been able to obtain the information requested.

1 • Garza v. Wal-Mart Stores. Inc. . No. 54540-4, County Court at Law Number 4, Nueces
County, Texas.

In this case, the plaintiff claimed that she slipped on water at a Wal-Mart store and
sustained injuries. At the time, the store was being reroofed and the plaintiff alleged that
the water leaked from the roof and thus the defendants were negligent. The defendants
filed cross-claims against each other for contractual indemnity and contribution. I
represented the defendant, Alice Roofing & Sheet Metal Works, Inc. I personally
handled the case from the beginning which included deposing fact and expert witnesses,
preparing and responding to discovery requests, and conducting voir dire. The case
settled after the jury was seated.

Date of representation: 1993 - 1994

County Court at Law #4, Nueces County, Texas; The Honorable James Klager
Counsel:

Robert Zamora
521 South Carancahua Street
Corpus Christi, Texas 78401
(361) 883-6677

John F. Dietze

Mr. Dietze no longer practices law and I was unable to obtain contact information
for him.

Tonya Webber
One Shoreline Plaza

800 North Shoreline Boulevard, Suite 800
Corpus Christi, Texas 78401
(361)880-5808

29

137

2. Aieman v. Dominguez . No. 93-6922-F, 214' 1 ' Judicial District, Nueces County, Texas.

In this case, the plaintiff fell off of a ladder and fractured his knee when he was doing
roof work on the defendant’s house. The plaintiff claimed that the defendant was
negligent in providing a defective ladder and in hiring incompetent workers. I
represented the defendant from the initial filing of the lawsuit. I filed an answer, deposed
witnesses, prepared and responded to discovery requests, filed a motion for summary
judgment, and tried the case. The jury placed 50% liability on the plaintiff and 50%
liability on the defendant. The net award of damages to the plaintiff was approximately
$ 8 , 000 . 00 .

Date of representation: 1993- 1994

214 th District Court, Nueces County, Texas; Honorable Mike Westergren
Counsel:

Pete Steiner
2727 Morgan Avenue
Corpus Christi, Texas 78405
(361)881-1000

Henry Kosling - deceased

3. Lope? v. Garza . 79 lb Judicial District, Jim Wells County, Texas.

This case involved an automobile accident. The plaintiffs claimed that the defendant
(Garza) rearended them and left the scene. Garza denied being in the accident. Co-
defendant (Texas Farmers Insurance Company) insured the plaintiffs under a policy
which provided for uninsured motorist benefits. Farmers would be liable if the jury
found that Garza was not involved in the accident and thus, the driver was unidentified.
Representing Garza, I filed responsive pleadings, deposed fact and expert witnesses,
prepared and responded to discovery requests, and fried the case to verdict. Garza was
elderly and was hospitalized before the trial so 1 had to go to trial without a client.
Farmers settled prior to trial. This was the first case where I called a biodynamics expert
to testify before a jury. The jury found no negligence on the part of my client.

Date of representation: 1993-1995

79 lh District Court, Jim Wells County, Texas; Honorable Terry Canales
Counsel:

Wallace Canales
1 1 0 North Almond Street
Alice, Texas 78332
(361)664-9301

Larry Matthys
15600 San Pedro #402
San Antonio, Texas 78232
(210) 829-5677

30

138

4. Zurlo v. DeBruvn Produce Co. . M-89-99, United States District Court for the
Southern District of Texas, McAllen Division.

This was an employment case involving allegations of sexual harassment, gender based
discrimination, and ERISA claims for health coverage. An attorney I worked with
represented the defendants. I was responsible for researching the law, reviewing medical
records, evaluating the case, preparing reports to the insurance carrier, and attending
mediation. The case was settled at mediation.

Date of representation: 1 994 - 1 995

United States District Court for the Southern District of Texas, McAllen Division;

Magistrate John Black

Counsel:

William Abemethy
Donnell, Abernethy & Kieschnick
555 North Carancahua Street #400
Corpus Christi, Texas 78478
(361)888-5551

Aaron Pena

323 West Cano, Suite 100
Edinburg, Texas 78539
(956)383-7444

5. Essex I ns. Co. v. Applied Earth Sciences . C.A. No. H-92-787, United States District
Court for the Southern District of Texas, Houston Division.

This case involved an insurer’s duty to defend an insured in a lawsuit. The insured was
an environmental consulting firm who had been sued by a person claiming to have been
exposed to hazardous chemicals. An attorney I worked with represented the insurance
company. I was responsible for researching the law and preparing a reservation of rights
letter, complaint for declaratory judgment, and motion for summary judgment. The
complaint asked the court to construe the insurance policy and declare that the insurance
company had no duty to defend the insured. The court held that there was no duty to
defend.

Date of representation: 1 992 - 1 993

United States District Court for the Southern District of Texas, Houston Division; I do
not recall the judge who presided over the case.

Counsel:

Sandra Sterba Boatwright
Donnell, Abemethy & Kieschnick
555 North Carancahua Street #400
Corpus Christi, Texas 78478
(361) 888-5551

31

139

Patton Breland
2007 Hermann Drive
Houston, Texas 77004
(713) 526-0541

6. John Hancock Mut. Life Ins. Co. v. Brvan , C.A. No. C-94-6, United Stated District
Court for the Southern District of Texas, Corpus Christi Division.

In this case, the defendant’s wife disappeared and her body was discovered almost four
years later. After the body was found, the defendant made a claim against the life
insurance policy and the insurance company began an investigation to determine who
should receive the proceeds. If the defendant was found to have caused the death of his
wife, the minor children would receive the proceeds. The Nueces County Sheriffs
Department was also conducting an investigation. The life insurance company filed an
interpleader, requesting that the life insurance proceeds be placed in the registry of the
court until the investigation could be completed. The defendant filed a counterclaim,
claiming that the failure of the life insurance company to pay him the insurance proceeds
constituted breach of contract, bad faith, violation of the Insurance Code and violation of
the Texas Deceptive Trade Practices Act. An attorney I worked with represented the
insurance company. I was responsible for researching the law, deposing witnesses, and
preparing a motion for summary judgment. I believe the proceeds were eventually paid
to the husband.

Date of representation: 1994

United States District Court for the Southern District of Texas, Corpus Christi Division;

Honorable Hayden Head

Counsel:

Sandra Sterba Boatwright
Donnell, Abernethy & Kieschnick
555 North Carancahua Street #400
Corpus Christi, Texas 78478
(361) 888-5551

James Post
315 Catalina Place
Corpus Christi, Texas 7841 1
(361) 852-2450

7. Leckrone v. Estrada . 92-6060-C, 94 lh Judicial District, Nueces County, Texas.

The automobile accident that led to this suit involved a tractor trailer owned by one
defendant, but leased by another defendant. The plaintiff made claims of negligence and
negligent entrustment. The issue regarding which defendant was liable for the negligence
of the driver involved interpretation of Interstate Commerce Commission regulations. I
represented the defendant, Border Connection, Inc., who owned the tractor trailer. I

32

140

researched the law, deposed witnesses, and prepared and argued a motion for summary
judgment. After the plaintiff settled with the defendant who leased the tractor trailer, he
dismissed my client from the suit.

Date of representation: 1994

94 lh District Court, Nueces County, Texas; Honorable Jack Hunter
Counsel:

Mike Crane

209 West Juan Linn Street
Victoria, Texas 77902
(361) 575-6764

8, Cowger v. Well Tech. Inc.. 93-09-32009, 79* Judicial District, Jim Wells County,
Texas.

The plaintiff, a fishing tool operator, claimed he was injured at the Celanese plant when
he lifted a casing cutter in conjunction with a workover of a disposal well. The plaintiff
alleged negligence and gross negligence against the defendants for failing to implement
and maintain an adequate safety program, failing to provide safety equipment, and failing
to train and educate workers. An attorney I worked with represented Hoescht Celanese,
the owner of the premises where the plaintiff was injured. I deposed fact and expert
witnesses, prepared a motion for summary judgment, and was second chair at trial. The
jury found in favor of the defendants.

Date of representation: 1 996 - 1 997

79 ,h District Court, Jim Wells County, Texas; Honorable Terry Canales
Counsel;

Roberta J. Hegland
98 San Jacinto Boulevard, Suite 2000
Austin, Texas 78701
(512)524-2842

JoEllcn Hewins
P.O. Box 5624
Corpus Christi, Texas 78465
(361) 883-0601

David Crago

14001 Fortuna Bay Drive, Unit 5
Corpus Christi, Texas 78418
(361) 949-0866

Christopher Rodriguez

Mr. Rodriguez is no longer practicing law and I was unable to get contact
information for him.

33

141

9. McKinley v. Brackin . 97-0965-A, 28 lh Judicial District, Nueces County, Texas.

This case involved an employment dispute at a medical clinic. The plaintiff doctor
alleged that the defendants conspired to drive him from employment at the clinic. The
plaintiff filed suit to enjoin the defendant clinic from ending his employment. An
attorney I worked with represented the defendants. 1 was responsible for interviewing
witnesses, preparing a removal to federal court and a motion to transfer venue, and
preparing and arguing other pre-trial motions. I left the firm before the case was
resolved.

Date of representation: 1997

28"’ District Court, Nueces County, Texas; Honorable Nanette Hasette
Counsel:

Ben A. Donnell

Donnell, Abernethy & Kieschnick
555 North Carancahua Street #400
Corpus Christi, Texas 78478
(361)888-5551

George Neely

Mr. Neely is no longer eligible to practice law and I was unable to get contact
information for him.

10. Delgado v. Levendecker Oil. Inc. . No. 16151, 229 ,h Judicial District, Duval County,
Texas.

This case involved a tractor trailer accident where two individuals were killed. The
plaintiffs sued the trucking company (Leyendecker) and the company that repaired the
brakes on the truck (French-EUison) for negligence and related claims. An attorney I
worked with represented the defendant, French-Ellison. I was responsible for
interviewing witnesses, meeting with experts, deposing fact and expert witnesses, and
preparing evaluation reports. There were a number of experts involved in this case -
brake experts, accident reconstruction experts, metallurgists, and economists. The case
settled before trial.

Date of representation: 1 996 - 1 997

229 ,h District Court, Duval County, Texas; Honorable Ricardo Garcia
Counsel:

Rebecca R. Kieschnick
Donnell, Abemetby & Kieschnick
555 North Carancahua Street #400
Corpus Christi, Texas 78478
(361)888-5551

34

142

James Post

315 Catalina Place

Corpus Christi, Texas 7841 !

(361)852-2450

Tony Pletcher

Watts Guerra Craft, L.L.P.

500 North Water Street, Suite 1200
Corpus Christi, Texas 78401
(361) 887-0500

John Holman Barr
Burt, Barr & Associates
203 East Colorado Boulevard
Dallas, Texas 75203
(214)943-0012

18. Legal Activities : Describe the most significant legal activities you have pursued,

including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organization(s) for whom you performed lobbying activities and describe
the lobbying activities you performed on behalf of such client(s) or organizations(s).
(Note: As to any facts requested in this question, please omit any information protected
by the attorney-client privilege.)

Domestic Violence Court - In 2007, the Nueces County Supervision and Corrections
Department and I established the Domestic Violence Court. I conduct monthly review
hearings for all defendants placed on community supervision for felony offenses
involving domestic violence. The community supervision officers maintain contact with
the victims and seek their input prior to reviews. There are currently 100 defendants in
the program. A critical component of the program is completion of a batterers
intervention program. Drug and alcohol use is also monitored and defendants are
referred to treatment as appropriate.

Local Administrative Judge - From 2007 to 2008, 1 served as the Local Administrative
Judge for the Nueces County District Courts. 1 presided over the meetings of the district
court judges; was responsible for the assignment and transfer of cases when conflicts
arose; ensured compliance with the local rules of administration; appointed committees
regarding court management; supervised the magistrates, magistrate staff, and the court
administrator; sought funding for the courts; and presented the court budget to
Commissioners Court. In addition, I voted to approve an amendment to Rule 2. 1
Criminal Law Magistrates as part of the Council of Judges, and voted to approve a
resolution concerning protocol for prioritizing cases.

Employment Law - While employed in private practice, I advised clients regarding
various employment matters which did not involve litigation. I reviewed applications for

35

143

employment to ensure that they complied with the law such as the Americans with
Disabilities Act (ADA). 1 advised clients regarding proper notice procedures under the
Employee Retirement Income Security Act (ERISA). I also reviewed employment
contracts to determine proper grounds for termination of employees or to ensure that
covenants not to compete would be enforceable.

Unauthorized Practice of Law Committee - 1 have served on the local subcommittee for
the Unauthorized Practice of Law Committee since 1995. The committee is charged with
preventing the unauthorized practice of law. I served as an investigator for the
subcommittee from 1995 to 2000 and currently serve as a liaison.

Nueces County Bail Bond Board - Between 2001 and 2002, 1 served on the Nueces
County Bail Bond Board, which adopted a set of local rules on November 26, 2002 about
who could be a licensed Bail Bond Surety and who could write a bail bond.

Texas Supreme Court Intern - During my last year in law school, I served as an intern for
Texas Supreme Court Justice Lloyd Doggett. I conducted legal research and drafted
briefs on cases in which applications for writ of error had been filed. I also drafted
opinions and presented them to the court.

Children’s Rights Clinic - While in law school, I participated in the Children’s Rights
Clinic. As a student attorney ad litem, I represented children in cases where the State
sought custody or termination of parental rights based on allegations of abuse and/or
neglect.

1 have not performed lobbying activities for any clients or organizations.

1 9. Teaching : What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.

I have not taught any courses.

20. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest.

None.

21 . Outside Commitments During Court Service : Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.

36

144

No.

22. Sources of Income : List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding $500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1978, may be substituted here).

See attached Financial Disclosure Report.

23. Statement of Net Worth ; Please complete the attached financial net worth statement in
detail (add schedules as called for).

See attached Net Worth Statement.

24. Potential Conflicts of Interest :

a. Identify the family members or other persons, parties, categories of litigation, and
financial arrangements that are likely to present potential conflicts-of- interest
when you first assume the position to which you have been nominated. Explain
how you would address any such conflict if it were to arise.

I am not aware of any actual or potential conflicts of interest. If I am confirmed, I
will resolve any potential conflict by reference to the federal recusal statutes and
Canon 3 of the Code of Conduct for United States Judges.

b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.

The federal statute (28 U.S.C. sec. 455) that addresses disqualification of judges is
very similar to Texas Rule of Civil Procedure 1 8b(2) which I referred to in
response to Question 14. I will follow the federal recusal statute in the same
manner that I have followed the state rule.

25. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar
Association’s Code of Professional Responsibility calls for “every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving the disadvantaged.” Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.

As an attorney in private practice, I provided pro bono legal services through Coastal
Bend Legal Services, now known as Texas Rio Grande Legal Aid. I provided services in
the areas of family law, wills, tax liens, and social security issues. The majority of the
cases involved divorces. This was over ten years ago so I do not have specific
information regarding the cases or the amount of time I devoted to each.

37

145

Since 2006, 1 have been a Texas Bar Foundation Fellow. The foundation’s mission is to
provide grants and assistance to organizations so that they can provide legal services to
the disadvantaged and underserved.

26. Selection Process :

a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
the interviews in which you participated). Is there a selection commission in your
jurisdiction to recommend candidates for nomination to the federal courts? If so,
please include that process in your description, as well as whether the commission
recommended your nomination. List the dates of all interviews or
communications you had with the White House staff or the Justice Department
regarding this nomination. Do not include any contacts with Federal Bureau of
Investigation personnel concerning your nomination.

On October 5, 2009, 1 sent a resume to Congressman Solomon P. Ortiz in
response to a notice regarding the federal judge position. On October 28, 2009, 1
met with Congressman Ortiz in Washington, D.C. and appeared before the Texas
Democratic Delegation. On May 12, 2010, 1 submitted a judicial questionnaire to
Senators Hutchison and Comyn. On June 9, 2010, 1 received notice that I had
been recommended for nomination to the President by the Texas Democratic
Delegation.

On July 15, 2010, 1 interviewed with the Senators’ Federal Judiciary Evaluation
Committee in Houston, Texas. On September 29, 2010, 1 interviewed with
Senators Hutchison and Comyn in Washington, D.C. On October 12, 2010,
Senator Hutchison informed me that my name was being submitted to the White
House for consideration. Since October 15, 2010, 1 have been in contact with pre-
nomination officials at the Department of Justice. On December 3, 2010, 1
interviewed with officials from the White House Counsel’s Office and the
Department of Justice in Washington, D.C. On January 26, 2011, the President
submitted my nomination to the Senate.

b. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any currently pending or specific case, legal issue or question
in a manner that could reasonably be interpreted as seeking any express or
implied assurances concerning your position on such case, issue, or question? If
so, explain fully.

No.

38

146

AO 10

Ret. mow

FINANCIAL DISCLOSURE REPORT
NOMINATION FILING

Report Required by the Ethics
in Government Act of 19 7S
<SUSjC.app.S5 101- W)

I. Pemoo Reporttag (l*U name, first. mih&Bc initial)

Ramos. Nelva G.

1 Coart oeOngaatartk*

U-S. District Cnurt, T exaa

3. Date of Report

oioa^on

4. Thk (ArtWe HI judges Wb'cnst active or senior sows;
magiaroie jmijja 1 rxfioue fuB- or fort-time)

U S. Dirt rict Judge

5a. Report Type (check appropriate type)

[7] Nomination. Due 01/26/201 1

{ | bilk) p~~j Annual jT^j Innal

6. Reporting Period

01/010010

to

120020)0

Sr. | | AioMdcdRepon

7. Chambers or Office Address

001 Leopard /804

Corpus Cfwisti, Texas 7H40)

& On the back of the Inrormstton con (since! Id this Hcport nod any
raccHfla Does pertatakg thereto. It k. ha to j oplp km, in cwnpUaoce
with ippllnble kwt nd regulattma.

HericwkgOfQrer Dale

IMPORTANT NOTES: The insJmchons accompanying (hit form mass be followed. Complete all parts,
checking the NONE box for each part where yoa have no reportable information. Sign on bar page.

I. POSITIONS. (Re partial IndMdml only; nt pp. 9-t) of filing Irutmai/uuJ
{ | NONE (No reportable positions.)

ms mot* NAME.QF OROANIZATIQN/ENTtTY

1. Board Member Nuecca County Juvenile Board

Z Board Member

Nuecra County Purchasing Board

5.

II. AGREEMENTS . < Reporting indjrxdaa] only; trr pp. 14.16 of filing insrrttcRoniJ
1 | NONE (No reportable agreements.)

DATE PARTIES AND TERMS

Stole of Texas Judicial Retirement Ptnn

147

FINANCIAL DISCLOSURE REPORT

Name or Person Reporting

I)a leaf Report

Page 2 of 8

Rdhrw, Nclvj G.

mttvaM i

III. NON-INVESTMENT INCOME - < Ripening inditiduot and spaust; see pp. 17-24 of fliny buirucl 'oiuj
A. Filer's Non-Investment Income
[ | NONH (No reportable non-investment income.)

p&Lli SQjjBOi andtvph income

lynum. iwc sppusc'sl

I. 2009

Slalc of Texas ■ wlaty

5125.onn.on

2.2009

Vue ccs CYwrity salary

St5.0fl0.00

.1.2010

Stale uf Tex;ix salary

5125.000.00

4.2010

Nueces t'i'iiiMy - salary

$15,000.00

R. SpoUSC’s Non-Invcslmcnl Income - // you wtrr mcrrirtl daring any pardon ofdurtpnrting ffar.aiBfJflt thh trtiinn.

i I Mkt/ mmtm r*'l rii/wml i-Mxpi for hunorurhi.)

1 | NONH ( No reportable non-investment income.)

UAXli

S OUR CE A N» i > TYP E

i.2010

Onyx Knpitetrrin* talar)-

IV. REIMBURSEMENTS — tmaipaiuibon. hx/ging./nad, cn/rrtainnint.

lti*)ihtc.\ rtkife »> -pounr I tin/ deprodim t-hildrrn; ne pp . H 2'/ of filing /lulrwlhiv..)

I' ] NONH (No reportable reimbursements.)

SOURCE. PATHS LOCATION PURPOSE ITEMS PAID. OR PROVIDED

Exempt

148

FINANCIAL DISCLOSURE REPORT

Nuor of Pcr*no Reporting

Oik' yf Report

Page 3 of 8

Komoj, Ntlvu O.

W/2AQ0IJ

V. GIFTS . ( Include I than to tpousr and tirpeitdent c hiUrtn; *ttpp, 28-M of filing InjIratliorttJ

f | NONH (No reportable sifts,}

SOURCE PKSCRH 7 riON VA1.UH

VI. LIABILITIES . IlncladcM Ihotr of ipotut and dependent children; ttt pp. 31-33 of pUnp itutnctiotuj

f '~1 NONH (No reportable liabilities ,)

MM DHSCRtPOON

1. Kleberg National Bank Note on Jim HopjCouniy protwny

K

2 . Wells Fargo Hank

Line of credit

J

149

FINANCIAL DISCLOSURE REPORT

Vimeof Pcrwta Deponing

Dotri<fRi.-pnn

Page 4 of 8

Huidos. Nctva (J.

tU/2<V2(Hl

VII. INVESTMENTS and TRUSTS -*™, , rclur. trumacrionz flncludrt thoxr nf Ipovir and deprrxbitl rhitdrrn; trt pp- M -60 nj filing tntJntelioaQ
| | NONK {No reportable income, assets, or tnuisuctitmx.)

A.

Description >>T Assets
(inriuliof trusl :vMt\I

Ru: "I XV oiler cnHi asset
cu-mpi fnwn prior dtsefiMifc

».

IneiuftK- ilk/ini:

trpiiniBf |*ri«l

r.

(in^sx ulih! U cnil
<>T reporting peril*!

0-

Tniftxolinns Jurinp repMliitp fvriixl

(1) <2>

(21

m

Ol

IAI

t-n

151

Aj.-i.xjnl Typetc.jL.

Vtiiuc

Value

T>pejc.».

Hole

Value

(tain

kkntilj <4

C‘+lc I rent.

(Vale 2

Melt* Ml

toy. xB-

rwn'iWfjy

Crete ’

Civic 1

buyce.xtkr

*** »» wH.1

art

CokJ

<qw>

icdenipii<*i>

U I 1 *

(A-m

111 (tfivau

Iran'iMUiml

t. Wells Fnrgn Hank Accounts. Cl)

A

ini crest

J

T

lltCDIJI

2. Knit N.vihwmI Hank Accounts

A

Interest

)

r

3. Howard Jones Money Mnrkd

A

Dividend

X

T

-4, Cleveland OH Arpt Sy* A Rev

A

Imcresl

J

T

5, 1 Vanillin Fed Tav Free Incitmc A

B

Dividrnd

K

T

A. I T Bid Amer Rifat KF2& Yr # 1 1

B

S3

K

T

7. V;mpiwrd Wellliiigum

B

B

1

H. liavls Nrtv York Vent me Fund

m

Dividend

K

T

a

a

T

10. Fidelity DivereiOtd lull Fund

A

Dividend

K

r

1 1. Texas Municipal Retirement System

B

Interest

l

T

12. HR MOD fv*) Ape Based Option A

A

Dividend

i

B

13. BR MOD 6-9 Ace-Based Option - B

A

Dividend

J

T

l-t, l AMtniis Saytes Bond Ket Opt

J

*

15. American FiiihU Knwlnnicnial lire lire Op)

■s

)

T

Its American Funds (inh Fund rtf Amer Inv Opi

NlMIV

I

■r

17, ()ppenhcin>cr(iirttval Kel Opt

K. m

J

T

1 lv>«*>'la«l VJev
liiri Waraa-lil aftdUtl

2 V*»«* t ‘i\Jo

<S«v t'.JimmWl mJIHI

i

A II , nitre lex
h VVt.ll’t JHUIMI
J VAi»*<« k-.*

s C.vjnt Winn

W livmuoi uijnum

I.* V W «,s,l
1 Ik.* v. tw-

it SIAM li.-w
i; tmi.wi lutvjMi
K tK.reii iviini
<t Ik turn u.itauni

M I.MIHr.llsuK-ll.*)

1* U.kti WOl

iii iu«y»i itmm

L WUill
in

tn \innriiHi vn.i«nre«i

l» MJ»I| Sl.V»> I-.

\l illo.HIl Alkwakt
r wmmn

150

FINANCIAL DISCLOSURE REPORT

Name of Person Reporting j

OalfofRli»(1

Page 5 of 8

Ritrnos. NrSva (I.

0f/2fv>20l 1

VII. INVESTMENTS and TRUSTS — tnrome, relu*. tramutllon* (hrrfadet iho*r of spouie ttrtd dtpendrnt chiLJrr/r; j rr pp. MM ofjUing IrutraclipHt J
[^] NONH (No reportable income, assets, or transactions.)

A.

DottlplHT' id

iirttfuding MU'! UNXlil

a

Iixivtc during

rtpon in j; period

C.

Cllttm t -jluc al end
of rrpiiiljnp |*rrioJ

IX

during repining period

Ml

«>

(!)

<2»

III

(2) {.!>

«'»

(5)

Pkk* *L\V idler ciu.h asset

Ante win

TvpefcF-

Value

VtJoe

line Value

Cain

Identify >4'

v tempi from prior Jl'tliV'iirr

(ode 1

dh.. rent.

Code’

MciJud

hvy.sdf.

mndddriy Cuk J

r.oic i

IldjeffMrllCT

IA 10

nri*u

11.1*) CiJeJ

(O-W)

redemption)

(J !*»

(A-U)

(il privaic

tt-jiw<ihm>

IR. OppenheimerSm & Mid Cap Val l-d N

A

Dividend

J

T

1*5. OppcHhcinter Value I'und N

A

Dividend

J

T

20. Oppenhelnurr Kquity N

n

i

■HH

None

;

r

22. Aliria (inMip Inc

■

i

T

2.!. Apple. Inc

m

B

T

24. (lifT) Natural Resources

■

i

1

25, Konst (>i| Corp New

1 i 1

B

B

2A. Halliburton Compnny

B

13

■

m

27. JP Morgan Chase & Co

A

Dividend

J

r

2K. SaodisX Corp Inc

None

J

B

■

2a Terek. C»q> Del New <Vm

None

J

■

20. llniicdhrnllh (iiruip Inc

A

Dividend

J

T

.If. Ixharc* IHOXX S

A

Dividend

J

T

K. Ishares Bwvlys Tips IIO

A

Dividend

J

1

A>, Lsharrs IBDXXS High Yirl

B

Dividend

1

T

.W. (shares Cold TR

A

Dividend

J

T

A ll.tlUrtki*

I- -VNl.Ull simtm
j SI.MtI1.Tlrm
N IN HI Ml

l‘l 4i«,U«ljHI VUULUH

t,*

II 4 WH UStl
i; fiiiMtn
K SIMI'I VVUII)

M tl.mi.ut)

K r>a||KillllllTlM>|

<• KL>ot wni
III sljauiu wunjtii
I. LVt.ltn Silt Lit 1 1

n

Ml M.ar <U> iNUdOim
S W*-w*l«Ul
*■ l:umutaJ

1 » V'W u uuw

it: ikM-tkiavrttiuiii

M tunno vmum

II lMil'MH
1 tvAMaAet

I; UfHH 1 RM»«

151

FINANCIAL DISCLOSURE REPORT

Nwntof Perron Rrpoctfn/i

DatrofRctud

Page 6 of 8

Ramos, Nclva G.

(JI/2AC2HI 1

VII. INVESTMENTS and TRUSTS-,™,. , i -chit, immactinru (Inelvdtrthou oftpautr and UrpriutenJ ctilld/xn; nt ftp. J4-6ff of filint instruellansJ
| f NONK { No reportable income, assets, or transactions.)

A.

iVerijHfnn of Asxt*

(iwludiny (n*d iMicfs)

IlUVtK lluriai:

icponluji pcri(»l

c

(iiw* value oi end
ci ivpnrja(.* pvritai

a

Tr, intention. dmin"

rrf»xlifl|> period

m

til

Oi

a>

(l>

f2) P)

j «»

<51

Ha* "tX T after raft fu'd

Aimwnl Tvpe<«.j!.,

Value

Value

Tvpeie.p.,

I kite Value '

Gain

LI null) id

rvcmpl fnvn prinr tlirdiwu/e

Oiile I di\„ rmu

roJci

MelluaJ

Iwy. sell.

nnrViUOy Crnic 2

1 {'trie I

liujcitjeHcr

IA-IH

oftr.l.t

cm

<QAV»

redemption)

«Pl 1

1

| lA-Hl

(if prituic

35. Step 1 IS PH) Sik Index HO

A

Dividend

J

r

.11). {haled {"onil Hldp Inc

None

J

r

37. Nov Vork Life liwurpiicc Company Whole
Life

None

K

T

■

I Jin* i Whm. Ml and I Ul
; lalivt'nbi
ilirrl'ilMHivd aipjllll

• Valor \Mlmii'.«ln

1 Sl,nu«rl.x»

!• -101.(111 U'AUil
j ti.<jn>Miiu
X C. 4 U 1 II UBilD
r.« . iiVHuiii sauintm
».» \n<«-a>
r lV»*V VaSir

it Jii«n on
n nm.mi jimum
K JlS.HU l*Unl
■ I l<OU«ll ii/UMMI

H t*t*»l (Mrtl l.xlM.-itaI*)
V l»l*t

r C_*l »l*U
lit ti/nuni
j. mum thxuni

1*1 Jl.utlHU V'(«»u««l
|*4-.),Imikia(0U«OMi*
X -,\S>*>«aMi
W isofablnJ

II 1QD| J 15/l»

II! Wwrlh*lWMV»i
m iMumi *r.0»j**i
i« j5.imi.mii uvui^ni

I' IsillUiUl

I: WW«i V0U»l»

152

FINANCIAL DISCLOSURE REPORT

N'*HM-«JTcnwin Reporting

IWcoT Report

Page 7 of 8

Rumoc. Net'O G.

oicfcwn

Vlll. ADDITIONAL INFORMATION OR EXPLANATIONS . (indicate part of Report 4

FINANCIAL DISCLOSURE REPORT

Nktr- at Penoq Reporting

Dak* »f Report

Page 8 of 8

KamiM, NcIwj G.

OI/2fV2f)ll

IX. CERTIFICATION.

I Certify that all InfonnaUuo phwi above (Including information pertaining to my upoase and minor or dependent children, iNny} b
accurate. trot. and complete to lit* hent of my tnowh-dpc unit belief, ood that aay HifortnoHoo not reported was withheld because ft mrl odd! { ruble rtahitorv
provisions permitting nan-distkHtire, " 7

I rurlhcr rrrl if)' that earned income fVwj o abide employment and honoraria and the acceptance of gifts which have been reported arc hi
eompttai.ee with the prortatae. of .< I1JS.C. »pp. * SO! ct. cwp, 5 U-S.C. 9 7J5J, and Judicial C'onfcrriKC reptlullona.

N(m: ; ANY INDIVIDUAL WHO KNOWINGLY AND WIU-ULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY UK SURIKCTTO (TV 11
AND CRIMINAL SANCTIONS (5 |LS,t\ npp. 6 UM>

HUNG INSTRUCTIONS

Mail signed original and 3 additional copies lo:

Committee on Financial Disclosure
Adininislrnlivc OfRcc of the United Suites Courts
Suite 2-301

One Columbus Circle. NJ£.

Washington. DC. 20544

153

Nelva Ramos

FINANCIAL STATEMENT
NET WORTH

Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank
accounts, real estate, securities, nrusts, investments, and other financial holdings) ail liabilities (including debts,
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate members of your
household.

ASSETS

Cash on hand and in banks

U.S. Government securities-add schedule

Listed securities -see schedule

Unlisted securities

Accounts and notes receivable:

Due from relatives and friends

Due from others

Doubtful

Real estate owned - see schedule

Real estate mortgages receivable

Autos and other personal property
Cash value-life insurance

Other assets itemize:

LIABILITIES

11

422

Notes payable to banks-scctired

t

360

106

090

247

137

105

100

15

116

Notes payable to banks-unsccurcd

Notes payable to relatives

Notes payable to others

Accounts and bills due

Unpaid income tax

Other unpaid income and interest
Real estate mortgages payable — see
schedule

Chattel mortgages and other liens payable

Other debts-itemize:

- Wells Fargo line of credit

10

3

200

158

426

098

I Total Assets

CONTINGENT LI ABILITIES

As endorser, comaker or guarantor
On leases or contracts

Legal Claims

743

S71

Total liabilities

Net Worth

Total liabilities and net worth

176

567

743

242

729

971

GENERAL INFORMATION

Are any assets pledged? (Add schedule)
Are you defendant in any suits or legal
actions?

Have you ever taken bankruptcy?

NO

NO

NO

FINANCIAL STATEMENT
NET WORTH SCHEDULES

Listed Securities

Altria Group Inc.

$ 2,415

Apple, Inc.

16,777

Cleveland OH Airport Sys A Rev

13,251

Cliffs Natural Resources

8,313

Edward Jones Money Market

28,444

FIA Card Services NA RASP

1,754

Forest Oil Corp. New

3,767

Franklin Federal Tax-Free Income Fund A

29,034

FT Bid Amer Bds 10-20 Year #1 1

18,441

Halliburton Company

3,972

IMIT Ser415

577

iShares Barclays Tips BO

5,029

iShares IBOXX $

4,452

iShares IBOXX $ High Yield

5,208

iShares TR

10,506

JP Morgan Chase & Co.

9,020

Sandisk Corp. Inc.

10,132

S&P US PFD Stock Index Fund

4,881

Terex Corp. New

6,342

Unitedhealth Group Inc.

7,970

Untied Continental Holdings, Inc.

2,395

BtackRock Moderate 6-9 Age-Based Option-A

7,530

BlackRock Moderate 6-9 Age-Based Option-B

8,927

Retirement Accounts

American Funds Fundamental Inv. Option

5,283

American Funds Growth Fund of America

5,187

Davis New York Venture Fund

26,729

Fidelity Diversified International Fund

28,492

Loomis Sayles Bond Retirement Option

6,864

Oppenheimer Developing Markets Fund N

891

Oppenheimer Equity N

1,430

Oppenheimer International Small Co. N

902

Oppenheimer Global Retirement Option

4,549

Oppenheimer Small & Mid Cap Value Fund N

1,431

Oppenheimer Value Fund N

1,476

Texas Municipal Retirement System

12,790

Vanguard Institutional Index Fund

25,648

Vanguard Wellington

29,297

Total Listed Securities

$ 360,106

155

Real Estate Owned

Personal residence $ 202,407

Vacant land 44,730

Total Real Estate Owned $ 247, 1 37

Real Estate Mortgages Payable

Personal residence $ 130,390

Vacant land 28,036

Total Real Estate Mortgages Payable $ 1 58,426

AFFIDAVIT

that the information provided in this statement is,
of my knowledge, true and accurate.

do swear
to the best

1 i

1 -7 l4- 1

1 1

t_j

(DAtI

3)

A. DENISE GUAJARDO

Notary Public
, STATE OF T£XAS

My Comm. E«p. 04-10-2011

v. (NAME) (J

3

156

STATEMENT OF HON. RICHARD B. JACKSON, TO BE UNITED

STATES DISTRICT JUDGE FOR THE DISTRICT OF COLORADO

Judge Jackson. Thank you, Senator. And I do want to thank
Senator Durbin, yourself, sir, Senator Leahy, Senator Grassley and
the Committee for granting me this hearing.

I certainly want to thank the President for nominating me. And
I especially want to thank Senators Udall and Bennet for their
very generous introductions.

And if I might, sir, introduce my family to you.

Senator Franken. Please.

Judge Jackson. My wife of 39 years, Liz Jackson.

Senator Franken. Welcome.

Judge Jackson. Here on the front row. My son, who is a lawyer
and living in California, Brett Jackson.

Senator Franken. Welcome.

Judge JACKSON. My daughter, Jenny, who lives in New York City
and came down to support me.

Senator Franken. How do you do?

Judge Jackson. Two of my family couldn’t be here, Senator, our
other son, Jeff, our older son couldn’t travel for medical reasons,
and, also, his wife is expecting a child in a month and a half and
she couldn’t come either. But they and their two sons, our grand-
children, I’m sure are here on the Webcast. And my brother, my
brother is a lawyer in Montana. He actually worked here in the
Senate for several years and I know he wanted to come back and
be back in his community, but he is both a lawyer and a part-time
judge and couldn’t schedule it on short notice, but I think he’ll be
watching today, too.

Thank you, sir.

Senator Franken. Well, thank you and welcome to all those
watching, and good luck on the birth.

Judge Jackson. Thank you.

Senator Franken. On the birth coming soon.

Ms. Darrow.

[The biographical information of Richard B. Jackson follows.]

157

UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY

QUESTIONNAIRE FOR JUDICIAL NOMINEES

PUBLIC

1. Name : State full name (include any former names used).

Richard Brooke Jackson

2. Position : State the position for which you have been nominated.

United States District Judge for the District of Colorado

3. Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.

Office: State of Colorado

Division Six, First Judicial District
100 Jefferson County' Parkway
Golden, Colorado 8040 1

4. Birthplace : State year and place of birth.

1 947; Bozeman, Montana

5. Education : List in reverse chronological order each college, law school, or any other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.

1 969 to 1 972, Harvard Law School, J.D. (cum laude), 1 972

1965 to 1969, Dartmouth College, A.B. ( magrta cum laude), 1 969

6. Employment Record : List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation
from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.

158

1 998 - Present
State of Colorado
100 Jefferson County Parkway
Golden, Colorado 80401
Chief Judge (2003-present)

District Judge (1998-present)

1972- 1998
Holland & Hart
555 17 lh Street
Denver, Colorado 80202
Partner (1978-1998)

Associate (1972-1978)

1994-1998

Town of Bow Mar, Colorado
5191 Bow Mar Drive
Bow Mar, Colorado 80123

Town Prosecutor (part-time, I donated all compensation back to the town)
Summer 1971

Herrick, Smith, Donald, Farley & Ketchum (since dissolved)

Boston, Massachusetts
Summer Associate

Summer 1970

FMC Corporation (facility no longer in business)

San Jose, California
Assembly line labor

Summer 1970

H.K. Porter, Inc. (facility no longer in business)

Burlingame, California
Night watchman

Summer 1969

Philco Ford (facility no longer in business)

San Jose, California
Inventory control worker

1969-1971
Harvard University
Massachusetts Hall
Cambridge, Massachusetts 02138

Assistant Coach, Harvard College Debate Team (part-time)

2

159

Other Affiliations (uncompensated)

2006 - Present
Jefferson Foundation
809 Quail Street, Building #1
Lakewood, Colorado 80215
Director

2004 - Present

Jefferson County Criminal Justice Strategic Planning Committee
900 Jefferson County Parkway
Golden, Colorado 80401
Chair

1 999 — Present

Jefferson County Corrections Board
Justice Services Division
3500 Illinois Street, #2800
Golden, Colorado 80401
Board Member (1999 - present)

Vice Chair (2004 - present)

2001-2006

Court Appointed Special Advocates of Jefferson and Gilpin Counties
100 Jefferson County Parkway, Room 2040
Golden, Colorado 80401
Director

1992- 1996

Colorado Trial Lawyers Association
303 East 17 lh Avenue, #320
Denver, Colorado 80203
Director

1975 - 1979 (approximate)

Pinecrest Homeowner’s Association
Denver, Colorado 80235
Director

7. Military Service and Draft Status : Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.

As a student at Dartmouth College, I participated in the United States Army Reserve
Officer Training Corps from 1 965 to 1 969. I was not “discharged,” but I was unable to

3

160

continue to the last two years of the four-year program and obtain a commission because!
of excessive refractive error in my eyes. I had been appointed to the United States
Military Academy out of high school but was unable to pass its physical for the same
reason. My eyesight was, however, and has always been correctible to 20/20. I
registered for selective service.

8. Honors and Awards : List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.

“Barrister’s Best - Best State Judge in Colorado,” Law Week Colorado (2010)

Judicial Excellence Award, American Board of Trial Advocates (2008)

“500 Leading Judges in America.” Lawdragon Magazine (2006)

Judicial Recognition Award, Peer 1 Community Corrections Program (2004)

“Best of the Bar” Lifetime Achievement Award. Denver Business Journal 620040
Listing in The Best Lawyers in America ( 1 993 - 1 998)

Fellow of the American College of Trial Lawyers (named in 1993)

Winner & Oralist Ames Moot Court Competiton, Harvard Law School (1971)

9. Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.

American Bar Association

Co-Chair, Insurance Coverage Committee, Litigation Section (1 994 - 1 997)
American College of Trial Lawyers
Fellow (1993 - present)

Colorado Bar Association

Court Appointed Special Advocates of Jefferson and Gilpin Counties
Director (2001 - 2006)

Advisory Board (2006 -- present)

Colorado Trial Lawyers Association
Board Member ( 1 992 - 1 996)

Denver Bar Association

First Judicial District (Jefferson & Gilpin Counties) Bar Association
Jefferson County Criminal Justice Strategic Planning Committee
Chair (2004 - present)

Jefferson County Mediation Project

Advisory Group Member (2000 — present)

10. Bar and Court Admission :

a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.

4

161

Colorado, 1972
District of Columbia, 1980

There have been no lapses in membership, although my D.C, Bar membership has
been inactive since the mid-1 990s because I have not had occasion to practice in
the District of Columbia.

b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
in membership. Give the same information for administrative bodies that require
special admission to practice.

Supreme Court of the United States, 1980

United States Court of Appeals for the D.C. Circuit, 1980

United States Court of Appeals for the Tenth Circuit, 1 972

United States District Court for the District of Colorado, 1972

Colorado State courts, 1972

D.C. Court of Appeals, 1980

There have been no lapses in membership, although my D.C. Bar membership has
been inactive since the mid-1990s because 1 have not had occasion to practice in
the District of Columbia.

11. Memberships :

a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 10 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership or participation, and indicate any office yon held.
Include clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.

Bow Mar Owners Incorporated

Dartmouth Club of the Greater Divide (intermittent membership 1 972 - present)
Dartmouth Club of Washington, D.C. (1979 -1982)

Dartmouth Lawyers’ Association (1985 - present)

Denver Association of Urban Debate Leagues

Advisory Board Member (2008 - present)

Jefferson County Corrections Board

Board Member (1999 — present)

Vice Chair (2004 - present)

Jefferson Foundation

Director (2005 - present)

Kenwood Golf & Country Club (1980 - 1981)

Mile High Dinner Club (mid 1 990s - present)

Pinehurst Country Club (1977 - 1 979 & 1 982 - present)

5

162

Pinecrest Homeowner’s Association

Board Member (approximately 1975 - 1979)

YMCA of Metropolitan Denver (1981 — Present)

b. The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion, or national
origin. Indicate whether any of these organizations listed in response to 1 1 a above
currently discriminate or formerly discriminated on the basis of race, sex, religion
or national origin either through formal membership requirements or the practical
implementation of membership policies. If so, describe any action you have taken
to change these policies and practices.

None of these organizations listed above currently discriminates or, to the best of
my knowledge, formerly discriminated on the basis of race, sex, religion or
national origin either through formal membership requirements or the practical
implementation of membership policies.

12. Published Writings and Public Statements :

a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Supply four (4) copies of all published
material to the Committee.

“Joe DiMaggio and You,” 37 The Colorado Lawyer 65 (April 2008). Copy
supplied.

Occasional Column, “Ask the Judge,” Jefferson County Bar Association
Newsletter (2004 - 2008), I have supplied copies of all columns I could locate.

Letter to the Editor, published as a Column entitled “The untold story of rapist’s
sentence,” Rocky Mountain News . August 15, 1999. Copy supplied.

“ABA Manual for Complex Insurance Coverage Litigation: A Prescription for
Efficient, Cost Effective and Manageable Litigation - A Reply,” 8 Fordham
Envtl. L. Rev. 59 (1996) (co-author). Copy supplied.

“Improving the Damages Appeal : A Few Words on Having the Last Word,” 32
Trial 66 (May 1996) (with Richard J. Crawford). Copy supplied.

Manual for Complex Insurance Coverage Litigation , Task Force of the
Committee on Insurance Coverage Litigation American Bar Association, Section
of Litigation (1993) (I am among 22 co-authors— I do not recall the particular
sections to which I contributed). Copy supplied.

6

163

“Environmental Insurance Litigation Revisited: A Kinder, Gentler (Cheaper,
Better) Approach,” 41 Trial Talk 330 (December 1992), Copy supplied.

“Environmental Damage Claims: Colorado Favors Insureds,” 41 Trial Talk 6
(January 1992). Copy supplied.

“A Practical Guide to Prosecuting Pollution Claims,” 38 Risk Management 40
(August 1991). Copy supplied.

“Liability Insurance for Pollutions Claims: Avoiding a Litigation Wasteland,” 26
Tulsa L.J. 209 (Winter 1990). Copy supplied.

“Environmental Cleanups and Insurance: Isn’t There a Better Way?” 21 Envir .
Rep. (BNA) 767 (1990). Copy supplied.

“The Political Question Doctrine: Where Does it Stand After Powell v.
McCormack , O’Brien v . Br own and Gilligan v. Morgan ?.” 44 U. Colo, L. Rev .
477 (1973). Copy supplied.

A Better New Hampshire , a 96-page book-magazine published in 10,000 copies
by the Citizens Council for a Better New Hampshire, 1968, Coordinating Editor
and author of two chapters. I do not have a copy.

Although I do not remember and have been unable to identify any other published
material I have written or edited, there may be other published material that I have
been unable to remember or identify.

b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, give the
name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.

None that I recall or have been able to identify.

c. Supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.

In 2009, 1 submitted comments to the Jefferson County Citizens Budget Review
Panel to address the budgetary needs of the Courthouse. I was asked a couple of
times by the Board of County Commissioners to attend meetings of the Panel, talk
about the Court and its needs, and answer questions. I did so, perhaps 30-45
minutes each time, and had no notes or written comments.

7

164

Although I do not remember and have been unable to identify any other
testimony, official statements, or communications relating to matters of public
policy or legal interpretation, there may be other such documents that I have been
unable to remember or identify.

d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by you, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk. If you do not have a copy of the speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.
If you did not speak from a prepared text, furnish a copy of any outline or notes
from which you spoke.

I have searched my files and electronic databases, and I am including all materials
that I have found. The list below represents my best efforts to provide an answer
that is as complete as possible, but I have spoken frequently at continuing legal
education, bar association, community, and school group events — especially since
I became a judge — and so there may be other presentations or speeches I have
given that I am unable to identify or remember. I typically do not have a text but
instead used brief handwritten, occasionally typed, notes. I have some of the
notes and materials and have provided copies of everything I could locate.

Speech to graduating General Educaiional Development (GED) class on
importance of education, sponsored by Red Rocks Community College, May 29,
2009. I have no notes, transcript, or recording. The address of the College is
13300 W. 6 lh Ave., Lakewood, CO 80228.

Panelist with author Philip Howard and two others to discuss his book Life
Without Lawyers , sponsored by the Institute for the Advancement of the
American Legal System at the University of Denver, April 3, 2009. Notes
supplied.

Speech, Green Mountain Optimist Club about courts and justice system generally,
June 17, 2008. I have no notes, transcript, or recording. The address for the Club
is at 10350 W. Colfax Ave, Lakewood, CO 80215.

Keynote Speaker, Graduation, Jefferson County Sheriffs Office Police Academy,
June 15, 2007. Notes supplied.

Speech to Colorado Chapter of American Board of Trial Advocates regarding the
“vanishing jury trial” and other jury trial-related topics, October 24, 2006. Notes
supplied.

8

165

Speech, “Civility and Professionalism are the Keys to a Satisfying Legal Career,”
sponsored by Colorado Bar Association, date not located. Notes supplied.

Address to Sixth Grade Continuation Program, Fairmont Elementary School,
concerning education and independence, May 17, 2006. Notes supplied.

Presentation, awards of maintenance (alimony) in domestic relations cases,
sponsored by First Judicial District Bar Association, December 3, 2005. I have no
notes, transcript, or recording. The address of the Bar Association is P.O. Box
1733, Wheat Ridge, CO 80034.

Presentation, mediation and the unauthorized practice of law, probably to a bar
association group but I do not recall, November 15, 2005. Notes supplied.

Speaker, Criminal Law Update, topic “Alternatives to Incarceration,” sponsored
by the Colorado Bar Association, March 24, 2005. 1 have no notes, transcript, or
recording. The address of the Bar Association is 1900 Grant St., 9 th Floor,

Denver, CO 80203.

Panelist, luncheon seminar on awards of maintenance (alimony), sponsored by the
Family Law Section of the Colorado Bar Association, March 1 8, 2005. Notes
supplied.

Panelist, insurance coverage update, sponsored by the Insurance Coverage
Committee of the Litigation Section of the American Bar Association, Tucson,
Arizona, March 5, 2005. I have no notes, transcript, or recording. The address of
the ABA is 321 N. Clark St., Chicago, IL 60654.

Panelist, “The Citizen and the Constitution,” sponsored by the Fairmont
Elementary School, January 26, 2005. I have no notes, transcript, or recording.
The address of the School is 1 5975 W. 50 lh Ave., Golden, CO 80403.

Speaker, 2004 Annual Advanced Family Law Institute, sponsored by the
Colorado Bar Association, December 3, 2004. Notes supplied.

“Insurance Coverage Litigation Update,” Colorado Trial Lawyers Association and
Kansas Trial Lawyers Association Annual Convention, Snowmass, Colorado,
August 12, 2004. I have no notes, transcript, or recording. The address of the
Colorado Trial Lawyers Association is 303 E. 17 th Ave., Suite 320, Denver, CO
80203.

Speaker, Colorado Bar Association seminar on jury' reform, November 14, 2003.

I have no notes, transcript, or recording. The address of the Bar Association is
1900 Grant St, 9* h Floor, Denver, CO 80203.

9

166

Panelist, insurance coverage topics, annual meeting of Insurance Coverage
Committee of the Litigation Section of the American Bar Association, Tucson,
Arizona, March 8, 2003. I have no notes, transcript, or recording. The address of
the ABA is 321 N. Clark St., Chicago, IL 60654.

Speaker, Family Law Institute, Colorado Bar Association, in Snowmass,
Colorado, concerning family law topics that I no longer recall, July 28, 2002. I
have no notes, transcript, or recording. The address of the Association is 1 900
Grant Street, 3 rd Floor, Denver, CO 80203.

Panelist, “Stack, Sway or Study: The Science and Ethics of Trial Consulting,”
sponsored by the American Society of Trial Consultants, June 8, 2002. Notes
supplied.

Presentation, training for members of Judicial Performance Committees
(evaluation of judges for retention recommendations), sponsored by the state
Judicial Performance Committee of the State Court Administrator’s Office, March
9, 2002. I have no notes, transcript, or recording. The address of the Commission
is 1560 Broadway, Suite 1930
Denver, CO 80202.

Presentation, “Making an Appropriate Record on Jury Instructions,” part of a
“Trial Skills with Trial Lawyers” seminar sponsored by the Colorado Trial
Lawyers Association, April 19,2002. Notes supplied.

Panelist, “Lawyers and the Media,” sponsored by the Faculty of Federal
Advocates, May 18, 2001 . I have no notes, transcript, or recording. The address
of the organization is P.O. Box 12025, Denver, CO 80212.

Presentation, “Judicial Perspectives: A View from the Bench,” sponsored by the
Colorado Trial Lawyers Association, May 1 1, 2001. I have no notes, transcript,
or recording. The address of the Association is 303 E. 17 th Ave., Suite 320,
Denver, CO 80203.

Presentation, “Critical Issues in Sentencing Sex Offenders,” sponsored by the
Jefferson County Children’s Advocacy Center, April 13, 2001. I have no notes,
transcript, or recording. The Center has since ceased operations.

Panelist, luncheon seminar on temporary and permanent maintenance, sponsored
by the Family Law Section of the Colorado Bar Association, March i 6, 2001 .
Notes supplied.

Panelist, litigation skills, sponsored by Insurance Coverage Committee of
Litigation Section of the American Bar Association, approximately March 6,

1999. Notes supplied.

10

167

Panelist, seminar on “Getting Benched,” sharing thoughts with and answering
questions from individuals interested in a career with the Colorado state courts, .
sponsored by the Colorado Women’s Bar Association, February 19, 1999. I have
no notes, transcript, or recording. The address of the Bar Association is P.O. Box
350666, Westminster, CO 80035.

“The Mock Trial as a Settlement Mechanism and Trial Preparation Tool - a Live
Demonstration and Soup-to-Nuts Guide,” Annual Convention of the Litigation
Section of the American Bar Association, New York, NY, April 1998. I have no
notes, transcript, or recording. The address of the ABA is 321 N. Clark St.,
Chicago, IL 60654.

“Sunscreen for Trial Lawyers: Mock Try Your Case and Don’t Get Burned,”
Annual Mid-Year Meeting of the Insurance Coverage Committee of the ABA
Litigation Section, Acapulco, Mexico, February 1998. I have no notes, transcript,
or recording. The address of the ABA is 321 N. Clark St., Chicago, IL 60654.

"Taming the Dragon: Management of the Legal Team in Complex Cases,”
Colorado Bar Association Annual Convention, Denver, Colorado, August 1997. I
have no notes, transcript, or recording. The address of the Bar Association is
1900 Grant St., 9 lh Floor, Denver, CO 80203.

“The Basics of Insurance Claims for Environmental Losses,” Colorado Trial
Lawyers Association Seminar on “Hot Topics in Environmental Law and Toxic
Torts,” November 20, 1992. I have no notes, transcript, or recording. The
address of the Association is 303 E. 17* Ave., Suite 320, Denver, CO 80203.

“Insurance Coverage for Environmental Claims -I,egal and Practical Issues,”
Idaho State Bar Annual Meeting, Coeur d’Alene, Idaho, July 23, 1992. Copy
supplied of the paper 1 presented.

“Handling Environmental Insurance Coverage Issues,” American Bar Association
Section of Business Law, Environmental Controls Committee, Spring Meeting,
Orlando, Florida, April 10, 1992. I have no notes, transcript, or recording. The
address of the ABA is 321 N. Clark St., Chicago, IL 60654.

“Practical Aspects of Insurance Coverage Cases in Environmental Law/Toxic
Tort Litigation,” Colorado Trial Lawyers Association, Environmental and Toxic
Torts Seminar, February 8, 1991 . Copy supplied of the paper I presented.

“Insurance Coverage for Environmental Damage: The Law and the Practice,”
Wyoming State Bar Convention, September 6, 1990. I have no notes, transcript,
or recording. The address of the Wyoming State Bar is 4124 Laramie Street,
Cheyenne, WY 82003.

II

168

“Rebuttal Summation on Damages Issues in Commercial and Business Tort
Litigation,” Association of Trial Lawyers of America, Advanced Seminar, Vait,
Colorado, August 16, 1990. I have no notes, transcript, or recording. The address
of the organization is 777 6"' St., N.W., Suite 200, Washington, DC 20001,

“Comprehensive General Liability Insurance Litigation in the 1990’s,” American
Bar Association Section of Litigation, Committee on Insurance Coverage
Litigation, Mid-Year Meeting, Tucson, AZ, April 7, 1 990. I have no notes,
transcript, or recording. The address of the ABA is 321 N. Clark St., Chicago, IL
60654.

“Insurance Coverage Issues in Environmental Litigation,” Dartmouth Lawyers
Association, Colorado Ski-Seminar Weekend, Beaver Creek, Colorado, March
3 1 , 1990. I have no notes, transcript, or recording. The address of the
Association is P.O. Box 5002, Hanover, NH 03755.

In addition to the listings above, I have made it my practice to frequently present
at continuing legal education (CLE) seminars and other trainings. I estimate that I
have been a participant in panels at probably two or three dozen CLE seminars
since I became a judge and Ido not recall the specifics of each of them. I served
on the faculty of the National Institute of Trial Advocacy, headquartered in
Boulder, Colorado, during programs held in 1986, 1987, 1990, and 1 991 (basic
and advanced trial practice courses).

e. List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.

I have occasionally, particularly in my capacity as Chief Judge of the First
Judicial District, been asked by the media to comment on various topics. 1 have
searched my files and publicly-available Internet databases to identify all of the
interviews I have given, and I have supplied the most complete listing available
based on my searches and my recollection, but there may be others I have been
unable to identify. I have supplied clips of all newspaper articles.

“WHAT THEY OWE YOU: About $778 million is outstanding, but don’t expect
criminals to pony up soon,” The Denver Post, Sept. 24, 2009.

“No relief in sight for court backlog,” The Denver Post, Apr. 9, 2009.

“Judge ‘dull’ to self, ‘dynamite’ to colleagues,” The Denver Post, Mar. 1, 2009.

“Wandering the halls of justice; Jefferson County courts takes its space crunch,
remodeling ideas under advisement,” The Denver Post, Aug. 3, 2008.

12

169

“2nd chance for mentally ill teens; Program helps turn lives around, keeps kids
out of the criminal-justice system," The Denver Post, Mar. 1 1, 2008.

“RTD cost-cutting hits Sixth Avenue segment hard,” Rocky Mountain News, Oct.
26, 2007.

“Expanding Jeffco courts critical, says chief judge,” The Denver Post , Apr. 1 2,
2007.

‘“Avenging angel’ gives killers life with no chance at parole,” Rocky Mountain
News, Feb. 28, 2007.

“Mandatory E-Filing Ordered In Jefferson County for Selected Court Case
Types,” US States News , May 24, 2006.

“Courts curbing public access to records,” Rocky Mountain News, Mar. 8, 2006.

“Administrative Obstruction of Justice,” News Media & the Law , Spring 2006.

“Jaclyn Senese Named District Administrator in First Judicial District,” US States
News , Sept. 26, 2005.

“Judge: Neagle shouldn't have been allowed to use alternate court exit to avoid
media,” Associated Press, June 17, 2005.

“Profiles of Success: William C. McCleam,” Colorado Lawyer , Dec. 2004.

“BEST OF THE BAR: Lifetime Achievement Award - R. Brooke Jackson,
Jackson’s stands on tough cases takes conviction,” Denver Business Journal, June
11,2004.

“Priest-tumed-Lawyer Never Stopped Helping,” Rocky Mountain News , Feb, 1 4,
2004.

“Father gets probation in shooting of toddler,” The Denver Post, Jan. 1 5, 2003.

“Youth Sentenced in Fatal Wreck,” Rocky Mountain News, Dec. 28, 2001 .

“Judging the Judge: After a year on the Jefferson County bench, Brooke Jackson
knows it can be a real hot seat,” Westward, Sept. 30, 1999.

“Judge Wants to Earn Public’s Respect,” Rocky Mountain News, Aug. 8, 1999.

“Top lawyer taking seat on bench,” The Denver Post, Sept. 13, 1998.

13

170

“Detective is Angry with Koby, Wiii Sue,” Boulder Daily Camera , February 5,
1998.

“If Your Insurer Won’t Pay...,” Kiplinger Personal Finance, June 1995.

“10th Circuit says disposal of toxic waste voids cover,” Business Insurance, Jan.
20, 1992.

“Pollution exclusion overturned,” Business Insurance , Oct. 16, 1989.

13. Judicial Office : State (chronologically) any judicial offices you have held, including
positions as an administrative law judge, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.

In 1998, 1 was appointed as a District Judge in the First Judicial District of Colorado,
which covers Jefferson and Gilpin Counties. In 2003, 1 was appointed Chief Judge of the
First Judicial District.

a. Approximately how many cases have you presided over that have gone to verdict
or judgment?

250 (excluding summary judgments in civil cases and “permanent orders”
hearings in domestic relations cases; there have been at least several hundred)

i. Of these, approximately what percent were:

jury trials:

70%

bench trials:

30%

civil proceedings:

45%

criminal proceedings:

55%

b. Provide citations for all opinions you have written, including concurrences and
dissents.

I have not published any opinions.

c. For each of the 10 most significant cases over which you presided, provide: (1) a
capsule summary of the nature the case; (2) the outcome of the case; (3) the name
and contact information for counsel who had a significant role in the trial of the
case; and (3) the citation of the case (if reported) or the docket number and a copy
of the opinion or judgment (if not reported).

14

171

1 . Fleming v. Stone, No. 00CV884 (2000 to 2002) (copy of my first order
attached).

Following the shootings at Columbine High School on April 20, 1999, a
number of cases were filed in the Jefferson County District Court. The
first case filed was randomly assigned to me, and all subsequent
Columbine cases were also assigned to me. One group of these cases
was brought by parents of deceased and injured victims (Fleming, et all)
against the Jefferson County Sheriff (Stone), with various media and
other intervenors, seeking disclosure of information under Colorado’s
open records laws. I read literally thousands of documents, viewed and
listened to perhaps hundreds of hours of audio and video tapes,
conducted numerous hearings, and issued between a dozen and two

dozen written orders.

Counsel for Plaintiffs:

Barry K. Arrington

7340 East Caley Avenue, #360
Centennial, CO 80111
Telephone: (303) 205-7870

Counsel for Defendants:

Lily Oeffler (now Hon.)

1 00 Jefferson County Parkway
Golden, CO 80401

Telephone: (303) 271-6110

Counsel for [ntervenor:

(The Denver Post):

Thomas B. Kelley

Steven D. Zansberg

1888 Sherman Street, #370
Denver, CO 80203

Telephone: (303) 376-2410

Counsel for Intervenors
(Harrises):

C. Michael Montgomery

1775 Sherman Street, 21 s ' Floor
Denver, CO 80203

Telephone: (303) 592-6600

Counsel for Intervenors
(Klebolds):

Franklin D. Patterson

5613 DTC Parkway, #400
Greenwood Village, CO 80111
Telephone: (303) 741-4539

2. Village Homes v. Travelers Cas. and Sur. Co., No. 02CV410 (2002 to
2003) (copy of opinion attached).

This was an insurance coverage case. A builder of new homes had been
sued by second-generation purchasers of the homes on account of

15

172

alleged construction defects. The builder sought coverage under liability
insurance policies that were in effect when the homes were built but not
when the homes were subsequently resold. I denied the insurer’s motion
for summary judgment, distinguishing what the insurer claimed was
controlling authority, Browder v. United States Fidelity and Guaranty
Company, 893 P.2d 132 (1995), and subsequently ordered the insurer to
indemnify the policyholder for a relatively small ($200,000) amount.

My judgment was affirmed by the Court of Appeals. 148 P.2d 293
(Colo. App. 2006) and later by the Colorado Supreme Court, Travelers
Cas, and Sur. Co. v. Village Homes of Colorado, Inc., 1 55 P.3d 369
(Colo. 2007). The case presented questions of insurance coverage law
that were important to the construction industry in Colorado.

Counsel for Plaintiff: Bradley A. Levin

1 660 Wynkoop Street, #800
Denver, CO 80202
Telephone: (303) 575-9390

Counsel for Defendants: Leslie A. Eaton

1225 17 lh Street, #2300
Denver, CO 80202
Telephone: (303) 299-7302

3. DeHererra v. Equity Link, No. 03CV3356 (2003 to 2005) (copy of
primary opinion attached).

This was a class action by individuals whose homes were “rescued”
from foreclosure by a company that bought the homes and then leased
them back to the homeowner with an option to repurchase. Following a
trial to the Court I entered judgment in favor of the plaintiff class,
finding that the lease/purchase program was in substance a loan; that the
program did not violate the Colorado Uniform Consumer Credit Code,
but that the defendants had violated the Colorado Consumer Protection
Act and had engaged in a civil conspiracy. The case was affirmed on
appeal. DeHerrera v. Equity Link, LLC, 2009 WL 2090999 (Colo. App.
July 16, 2009) (unpublished).

Counsel for Plaintiff: John F. Head

1860 Blake Street, #300
Denver, CO 80202
Telephone: (303) 623-6000

Counsel for Defendants: Bobee J. Musgrave

1700 Lincoln Street, #4100
Denver, CO 80202
Telephone: (303) 861-7000

16

173

Co-counsel for Defendants: Joseph A. Murr

410 1 7 th Street, #2400
Denver, CO 80202
Telephone: (303) 534-2277

4. Cornerstone Group XXII, LLC v. Wheat Ridge Urban Renewal
Authority, 04CV3513 (2004) (copy of opinion attached)

The City of Wheat Ridge, a suburb of Denver, condemned supposedly
blighted private land in order to permit the construction of a Walgreens
drug store. However, midway through the condemnation process the
City renounced its contracts with Walgreens. Walgreens sued for
specific performance and damages. 1 denied specific performance on
grounds that courts do not have authority to order municipalities to
resume and complete condemnation projects. My decision was later
affirmed in part and reversed in part by the Colorado Court of Appeals.
Cornerstone Group XXII, LLC v. Wheal Ridge Urban Renewal
Authority , 151 P.3d 601 (Colo. App. 2006). The part of the Court of
Appeals’ decision that reversed my decision was in turn reversed by the
Colorado Supreme Court, thus affirming my decision. Wheat Ridge
Urban Renewal Authority v. Cornerstone , 176 P.3d 737 (Colo. 2007).

Counsel for Plaintiff: Thomas D. Leland

370 17"’ Street, #4650
Denver, CO 80202
Telephone: (720) 931-3025

Counsel for Defendants: Steven J. Dawes

1512 Larimer Street, #300
Denver, CO 80202
Telephone: (303) 298-1601

Co-counsel for Defendants: Corey Y. Hoffmann

1350 17' b Street, #450
Denver, CO 80202
Telephone: (303) 825-6444

5. State of Colorado v. General Steel Domestic Sales, LLC , No. 04CV143
(2004) (copy of opinion attached).

The Colorado Attorney General brought a suit against a company that
sold steel buildings, employing nationwide radio advertising to attract
potential customers. General Steel used a team of sales persons
following a script to sell buildings to individuals who called in response
to the ads. I divided the case into two phases and held a trial to the court

17

174

on the claims and defenses with a sampling of 1 1 customers. I found
that the defendant company, its president and other officers violated the;
Colorado Consumer Protection Act and imposed injunctive relief,
substantial civil penalties and attorney's fees. The parties settled for
injunctive relief, several million dollars in monetary relief and attorney’s
fees before the case moved to the second phase, which would have
involved a massive number of individual mini-trials. The Attorney
General’s Office published my opinion on its web site so that General
Steel customers and potential customers around the country would be
aware of if

Counsel for Plaintiff:

Co-counsel for Plaintiff:

Counsel for Defendant:

Co-counsel for Defendant:

Marie E. Berkenkotter (now Hon.)
1777 6* Street
Boulder, CO 80306
Telephone: (303) 441-3748

Jay B. Simonson
1 525 Sherman Street, 7 ,h Floor
Denver, CO 80203
Telephone: (303) 866-4500

Sean R. Gallagher
1200 17 m Street, #1500
Denver, CO 80202
Telephone: (303)454-2415

Robert N. Miller
1 899 Wynkoop StTeet, #700
Denver, CO 80202
Telephone: (303) 291-2313

6. City of Golden v. Jefferson County, No. 03CV3045 (2004-2007) (copy
of one order attached).

The City of Golden sits at the foot of Lookout Mountain in Jefferson
County, Colorado. That mountain is the site of several
telecommunications towers that serve the metropolitan Denver area.

The Federal Communications Commission ordered that all television
stations in the United States convert from analog to digital signals, and
Denver’s television stations wished to erect a new 730-foot tower on the
mountain. This was opposed by the City, homeowner associations and
the Colorado School of Mines for reasons including concerns about the
health impact of radiation emissions, interference with the operation of
equipment at the university, and damage to property values. The Board
approved the tower following public hearings, leading to this litigation.

1 issued several orders over the course of this case. I am including an

18

175

order issued May 4, 2005, because it was the first substantive order and
is representative of other orders that followed.

Counsel for the Plaintiff:

Counsel for Defendant Board:

Counsel for Homeowners:

David S. Williamson
1650 38 th St., #103W
Boulder, CO 80301
Telephone: (303)443-3100

Patricia W. Gilbert
Eric Butler

100 Jefferson County Pkwy., #5500
Golden, CO 80401
Telephone: (303) 271-8900

Deborah Camey
21789 Cabrini Boulevard
Golden, CO 80401
Telephone: (303) 526-9666

Counsel for the Tower Developer: David W. Stark

1 700 Lincoln Street, #3200
Denver, CO 80203
Telephone: (303) 607-3753

7. People v. Armijo , No. 04CR321 1 (2004 to 2007) (appellate opinion is
reported at 2010 WL 2106552 (Colo. App. May 27, 2010).

Among several murder eases over which I have presided, Armijo
involved unusual questions of both fact and law. The defendant
confessed to stabbing and killing his girlfriend but he pled not guilty by
reason of insanity, arguing that he suffered from a psychosis resulting
from long-term use of methamphetamine. His contention was that
because he did not know that such drug use would cause psychosis, it
amounted to “involuntary intoxication” and that this psychosis, coupled
with pre-existing mental illness, rendered him unable to distinguish right
from wrong when the act occurred. Alternatively, he argued that the
court improperly imposed an NGRI plea over his objection. I declined
to instruct the jury on his theory, and he was convicted. His conviction
was affirmed by the Court of Appeals.

Counsel for the People: Bryan Cook

500 Jefferson County Parkway
Golden, CO 80401
Telephone: (303) 271-6800

19

176

Matt Maillaro
915 1 O'* Street
Greeley, CO 80632
Telephone: (970)356-4010

Counsel for the Defendant: David R. Jones

303 16 lh St., #200
Denver, CO 80202
Telephone: (303) 629-9700

Dorothea Reiff
560 Golden Ridge Road, #10
Golden, CO 80401
Telephone: (303) 279-7841

8. Kim v. The Grover Coors Trust, 02CV441 (2002-2004) (copy of opinion
attached).

This was a class action in which shareholders of a Coors company,
Graphic Packaging International Corporation, alleged that several
members of the Coors family breached fiduciary duties in connection
with the sale of convertible preferred stock to a Coors family trust. It
was a very complex case, tried to the court in January 2004. I found that
the defendants did not breach fiduciary duties. With the exception of the
award of costs, which was remanded for a hearing (and settled before the
hearing), the decision was later affirmed on appeal. Kim v. Grover C.
Trust , 179 P.3d 86 (Colo. App. 2007).

Counsel for Plaintiff: John F. Hames

Gregory E. Keller
964 3 ,d Avenue, 7 th Floor
New York, NY 10155-0798
Telephone: (516) 773-6090

Counsel for Defendants: Thomas C. Bell

1550 17* Street, #500
Denver, CO 80202
Telephone: (303) 892-747

9. People v. Riggan, No. 97CR1 006 (1999) (copy of per curiam opinion
attached).

From 1 995 to 2002, Colorado used a three-judge panel system to
determine whether to impose the death penalty in first degree murder
cases where that penalty was sought. The district judge who presided
over the guilt phase of the trial plus two district judges selected by lot

20

177

comprised the panel. Shortly after I was sworn in as a district judge in
1998 I was randomly selected and appointed by the Chief Justice to the
first three-judge panel to hear and decide a death penalty case. The jury
in the guilt phase did not convict on murder after deliberation; it
convicted only on felony-murder. Following a penalty-phase trial, I
wrote the per curiam opinion imposing a sentence of life without parole.

Counsel for People: Dennis Hall (now Hon.)

100 Jefferson County Parkway
Golden, CO 80401
Telephone: (303) 271-6150

Counsel for Defendant: Dennis W. Hartley

1974 South 8* Street, #5
Colorado Springs, CO 80905
Telephone: (719) 635-5521

10. People v. Page, No. 99CR2029 (2001) (copy of panel opinion including
my concurring opinion that begins at page 28 attached).

I was appointed to a second three-judge death penalty panel in 2001 .
The defendant had been convicted in the Denver District Court of a
brutal rape and murder and I was appointed to the three-judge panel
presiding over the penalty phase. My two colleagues on the panel
concluded that the case was not appropriate for the death penalty. I
disagreed, and wrote separately that in view of the “circumstances that
are repugnant to any sense of decency and humanity that J can muster
within me” 1 felt that the defendant deserved the death penalty. But I
credited compelling physical evidence of brain damage that showed the
defendant to have severely limited ability to control impulses, and so I
concurred in the result with my colleagues.

Counsel for the People: Philip A. Brimmer (now Hon.)

901 19' h Street
Denver, CO 80294
Telephone: (303) 335-2794

Counsel for the Defendant: James A. Castle

1544 Race Street
Denver, CO 80206
Telephone: (303) 675-0500

Co-counsel for the Defendant: Randolph C. Canney

1733 High Street
Denver, CO 80218
Telephone: (303)388-5014

21

178

d. For each of the 1 0 most significant opinions you have written, provide: (1)

citations for those decisions that were published; (2) a copy of those decisions that
were not published; and (3) the names and contact information for the attorneys
who played a significant role in the case.

1. Fleming v. Slone, OOCV884 (copy of “Order Following In Camera
Review — No. 1,” April 24, 2000, attached).

Counsel for Plaintiffs: Barry K. Arrington

7340 East Caley Avenue, #360
Centennial, CO 801 1 1
Telephone: (303) 205-7870

Counsel for Defendants: Lily Oeffler (now Hon.)

1 00 Jefferson County Parkway
Golden, CO 80401
Telephone: (303) 271-6110

2. Fleming v. Stone , No. OOCV884 (copy of “Order Following In Camera
Review - No. 8,” May 22, 2001, attached). My order was reversed by
the Court of Appeals sub nom Denver Post Corp. v. Cook, 1 04 P.3d 293
(Colo. App. 2004). The Colorado Supreme Court sub nom Harris v,
Denver Post Corp., 123 P.3d 1166 (Colo. 2005), reversed the Court of
Appeals (although it reached different conclusions than my opinion).

Counsel for the Plaintiff: Thomas B. Kelley

Steven D. Zansberg
1888 Sherman Street, #370
Denver, CO 80203
Telephone: (303) 376-2410

Counsel for the Defendant (Sheriff): Lily Oeffler (now Hon.)

100 Jefferson County Parkway
Golden, CO 80401
Telephone: (303) 271-61 10

Counsel for Intervenors (Harrises): C. Michael Montgomery

1775 Sherman Street, 21 s1 Floor
Denver, CO 80203
Telephone: (303) 592-6600

Counsel for Intervenors (Kleboids): Franklin D. Patterson

5613 DTC Parkway, #400
Greenwood Village, CO 80111
Telephone: (303) 741-4539

22

179

3. Kim v. The Grover Coors Trust, 02CV441 (February 18, 2004) (copy

attached).

Counsel for Plaintiff: John F. Hames

Gregory E. Keller
964 3' d Avenue, 7 ,h Floor
New York, NY 10155-0798
Telephone: (516) 773-6090

Counsel for Defendants: Thomas C. Bell

1550 l?" 1 Street, #500
Denver, CO 80202
Telephone: (303) 892-9400

4. DeHererra v. Equity Link, No. 03CV3356 (December 30, 2005) (copy

attached).

Counsel for Plaintiff: John F. Head

1860 Blake Street, #300
Denver, CO 80202
Telephone: (303) 623-6000

Counsel for Defendants: Bobee J. Musgrave

1 700 Lincoln Street, #41 00
Denver, CO 80202
Telephone: (303) 861-7000

Co-counsel for Defendants: Joseph A. Murr

410 1 7“ Street, #2400
Denver, CO 80202
Telephone: (303) 534-2277

5. Cornerstone Group XXII, LLC v. Wheal Ridge Urban Renewal

Authority, 04CV35I3 (December 30, 2004) (copy attached)

Counsel for Plaintiff: Thomas D. Leland

370 17 th Street, #4650
Denver, CO 80202
Telephone: (720) 931-3025

Counsel for Defendants: Steven J. Dawes

1512 Larimer Street, #300
Denver, CO 80202
Telephone: (303) 298-1601

23

180

Co-counsel for Defendants: Corey Y. Hoffmann

1350 17"’ Street, #450
Denver, CO 80202
Telephone: (303) 825-6444

6. Colorado v. General Steel Domestic Sales, LLC , No. 04CV143 (June 4,
2004) (copy attached).

Counsel for Plaintiff: Marie E. Berkenkotter (now Hon.)

1777 6 ,h Street
Boulder, CO 80306
Telephone: (303) 441-3748

Co-counsel for Plaintiff: Jay B. Simonson

1525 Sherman Street, 7 lh Floor
Denver, CO 80203
Telephone: (303) 866-4500

Counsel for Defendant: Sean R. Gallagher

1200 17 th Street, #1500
Denver, CO 80202
Telephone: (303) 454-2415

Co-counsel for Defendant: Robert N. Miller

1 899 Wynkoop Street, #700
Denver, CO 80202
Telephone: (303) 291-2313

7. City of Golden v. Jefferson County, No. 03CV3045 (copy of May 4,

2005 order attached).

Counsel for the Plaintiff: David S. Williamson

1650 38"’ St.,#103W
Boulder, CO 80301
Telephone: (303)443-3100

Counsel for Defendant Board: Eric Butler

100 Jefferson County Pkwy,, #5500
Golden, CO 80401
Telephone: (303) 271-8900

Counsel for Homeowners: Deborah Carney

21789 Cabrini Boulevard
Golden, CO 80401
Telephone: (303) 526-9666

24

181

Counsel for the Tower Developer: David W. Stark

1700 Lincoln Street, #3200
Denver, CO 80203
Telephone: (303) 607-3753

8. Borders v. Aspen Equestrian Estates, LLC , No, 08CV3026 (March 24,

2009 and March 16, 2010) (two-part opinion attached)

Counsel for Plaintiffs: Michael L. O’Donnell

Carolyn J. Fairless
Steven M. Kelso
1801 California Street, #3600
Denver, CO 80202
Telephone: (303) 244-1800

9. People v. Riggan., No. 97CR1006 (April 16, 1999) (copy attached).

Counsel for People: Dennis Hall (now Hon.)

100 Jefferson County Parkway
Golden, CO 80401
Telephone: (303)271-6150

Counsel for Defendant: Dennis W. Hartley

1974 South 8 lh Street, #5
Colorado Springs, CO 80905
Telephone: (719)635-5521

10. People v. Page, No. 99CR2029 (March 2, 2001) (copy attached -

concurring opinion).

Counsel for the People: Philip A. Brimmer (now Hon.)

901 19 ,h Street
Denver, CO 80294
Telephone: (303) 335-2794

Counsel for the Defendant: James A. Castle

1 544 Race Street
Denver, CO 80206
Telephone: (303) 675-0500

Co-counsel for the Defendant: Randolph C. Canney

1733 High Street
Denver, CO 80218
Telephone: (303) 388-5014

25

182

Counsel for Defendants: Kenneth D. Noel

202 North Ave., #235
Grand Junction, CO 81501
Telephone: (970) 589-6444

e. list of all cases in which certiorari was requested or granted,

I am not aware of any case over which I presided in which certiorari was
requested or granted by the Supreme Court of the United States.

f. Provide a brief summary of and citations for all of your opinions where your
decisions were reversed by a reviewing court or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings. If
any of the opinions listed were not officially reported, provide eopies of the
opinions.

Supreme Court :

People v. Shari, 204 P.3d 453 (Colo. 2009) (reversed order disqualifying public
defender which had been based on my finding of a conflict of interest,’ Rule 21
proceeding)

Harris v. Denver Post Corp., 123 P.3d 1 166 (Colo. 2005) (reversed order denying
access by media to certain records seized from Harris and Klebold homes
pursuant to search warrant)

People v. Dunaway, 88 P.3d 619 (Colo. 2004) (reinstated my judgment after
reversal by Court of Appeals, finding that my error had been harmless)

Court of Appeals :

Coley v. Jefferson County School District R-l , No. 08CA369 (Slip Op. November
13, 2008) (reversed order finding that governmental immunity did not bar claims)

Tsoupakis v. Neidich , No. 06CA1550 (Slip Op. March 13, 2008) (affirming
dismissal of complaint for lack of personal jurisdiction as to one defendant but
reversing as to the other defendant)

Novak v. Craven, 1 95 P.3d 1 1 1 5 (Colo. App. 2008) (remanding for award of costs
but affirming on merits)

People v. Chavez, No. 06CA444 (Slip Op. December 20, 2007) (reversing
revocation of probation and remanding for further advisement)

26

183

Davis v. Hill, No. 06CA1906 (Slip Op. December 6, 2007) (reversing summary
judgment for plaintiffs; following trial, court entered judgment for plaintiffs,
which was affirmed on second appeal)

People v. Smith,~No. 04CR634 (Slip Op. May 17, 2007) (reversing conviction on
one count that merged with another count but affirming judgment in all other
respects)

People v. Rickman, 155 P.3d 399 (Colo. App. 2006), cert, granted 2007 WL
93093(Jan. 16, 2007) (reversing conviction for violation of bail bond condition,
because condition was established by pretrial services rather than county court),
aff d in part, rev’d in part , People v. Rickman, 178 P.3d 1212 (Colo. 2008)
(reinstating a portion of my ruling)

People v Renander, 151 P.3d 657 (Colo. App. 2006) (reversed order reassembling
47 counts of sexual exploitation of children into 36 counts)

People v. Walters, 148 P.3d 33 1 (Colo. App. 2006) (plain error not to strike sua
sponte certain remarks of prosecutor in closing argument notwithstanding absence
of objection by defendant)

People v. Sowers, 04CA 1 1 35 (Slip Op. June 22, 2006) (reversing denial of post-
conviction motion and remanding for hearing)

People v. Louie, 03CA46 (Slip Op. December 15, 2005) (vacating convictions on
certain counts, affirming on other counts)

Haas v. Haas, 03CA1 120 (Slip Op. December 23, 2004) (reversing order that
parties pay children’s future orthodontia expenses as part of their child support
obligation; affirmed in all other respects)

Reis v. Reis, 03CA 1 3 1 7 (Slip Op. October 2 1 , 2004) (reversing maintenance and
child support calculations due to double counting of one expense item; otherwise
affirmed)

People v. Bowman, No. 02CA1200 (Slip Op. September 23, 2004) (reversing
conviction on one count due to inadequate advisement regarding right to counsel
at pretrial motions hearing; otherwise affirmed)

Department of Transportation v. Auslacnder, 94 P.3d 1 239 (Colo. App. 2004)
(reversing portion of order enjoining CDOT from approving construction of
deceleration lane without a court hearing)

Branch v. Colorado Department of Corrections, 89 P.3d 496 (Colo. App. 2003)
(court erred in failing to award costs to inmate who was prevailing party in
successful civil suit against DOC)

27

184

Linke v. Outdoor Systems , Inc., No. 01 CA858 (Slip. Op. August 21 , 2003)
(reversing judgment granting specific performance to property owner against
holder of easement for outdoor billboards)

People v. Huerla-Lozano , No. 00CR29O8 (Slip Op. July 10, 2003) (reversal of
conviction because court improperly denied defendant’s challenge of a
prospective juror for cause)

Blesch v. Denver Publishing Co., 62 P.3d 1060 (Colo. App. 2002) (reversing
order denying the Rocky Mountain News access to a portion of an autopsy report)

In re Custody of C.M. , 74 P.3d 342 (Colo. App. 2002) (remanding order granting
visitation rights to child’s grandmother for further factual findings)

In re Marriage of Mitchell, 55 P.3d 183 (Colo. App. 2002) (concerning method of
enforcing an attorney’s lien)

Jaimes v. State Farm, 53 P.3d 743 (Colo. 2002) (court originally affirmed finding
that policy exclusion was valid under then existing law but later reversed based
upon intervening Supreme Court decision changing law)

Klebold v. Search and Seizures Conducted at 9351 Cougar Road, Littleton,
Colorado, No. 01CA1240 (Slip Op. May 16, 2002) (reversing denial of return of
property seized under search warrants and remanding for further hearing)

People v. Bowers, No. 00CA1 1 8 1 (Slip Op. April 1 1 , 2002) (reversing conviction
on vehicular assault count but affirming in all other respects)

Florence v. Pool , No. 01CA189 (Slip Op. March 21, 2002) (reversing order
affirming magistrate’s extension of a temporary’ injunction)

Additional Cases :

There arc two cases where the Court of Appeals reversed in part but the Supreme
Court reinstated my judgment: Cornerstone Group XXII, LLC v. Wheat Ridge
Urban Renewal Authority, 151 P.3d60I (Colo. App. 2006), rev’d Wheat Ridge
Urban Renewal Authority v. Cornerstone, 176 P.3d 737 (Colo. 2007); People v.
Manzo, 144 P.3d 551 (Colo. 2006).

g. Provide a description of the number and percentage of your decisions in which
you issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored.

All of my orders and opinions are unpublished. Each order and opinion is placed
in the files of the court clerk.

28

185

h. Provide citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, provide copies of the opinions.

People v. Anderson, No. 00CR933 (October 23, 2001) (copy attached)

People v. Hererra, No. 03CR370 (August 29, 2003) (copy attached)

People v. Valdez, No. 98CR3 147 (August 21 , 2006)

i. Provide citations to all cases in which you sat by designation on a federal court of
appeals, including a brief summary of any opinions you authored, whether
majority, dissenting, or concurring, and any dissenting opinions you joined.

1 have not sat by designation on a federal court of appeals.

14. Recusal: If you are or have been a judge, identify the basis by which you have assessed
the necessity or propriety of recusal (If your court employs an "automatic" recusal system
by which you may be recused without your knowledge, please include a genera]
description of that system.) Provide a list of any cases, motions or matters that have
come before you in which a litigant or party has requested that you recuse yourself due to
an asserted conflict of interest or in which you have recused yourself sua sponte. Identify
each such case, and for each provide the following information:

a. whether your recusal was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any other person or interested party; or if you
recused yourself sua sponte;

b. a brief description of the asserted conflict of interest or other ground for recusal;

c. the procedure you followed in determining whether or not to recuse yourself;

d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any
other ground for recusal.

For the first five or six years on the bench 1 automatically recused myself sua sponte
in any case involving my former law firm. Since that time I have not automatically
recused, but I have always disclosed my prior relationship with the firm and invited
all parties to notify my division clerk if they would like for me to recuse. I have not
kept a record of those cases. E estimate that there have been half a dozen such cases.

1 recused myself sua sponte in a case in which one of the lawyers was the subject of a
complaint to the Office of Attorney Regulation Counsel that 1 had filed in a previous
year. I do not have a record of the case.

29

186

I have recused myseif in three cases in which a particular attorney was counsel of
record, because I am concerned that 1 might be prejudiced based upon his behavior
both in court and with employees in our Clerk’s Office. I believe that one of those
recusals might have been on a motion by the attorney. The others were sua spontc. I
do not have a record of the cases.

As chief judge, I have disqualified our entire bench in a case involving criminal
charges filed against a temporary employee in the clerk’s office; a case involving the
homicide death of a current district judge’s stepson; a pro se suit against the First
Judicial District by a criminal defendant who objected to probable cause findings
made by a district judge at a preliminary hearing; a case in which a county court
judge received a DU1; a suit against a law firm in which one of the present district
judges formerly was a partner; and a case in which a county court judge was listed as
a witness.

I recently recused, on the motion of the defendant in a criminal case, after I refused to
impose a probationary sentence to which the parties had agreed and to which I had
tentatively agreed. I declined to impose the sentence after I received a report from
our Probation Department indicating that it did not wish to supervise the individual,
because he was considered a community safety risk. The defendant meanwhile had
been debriefed by the prosecution, allegedly due to his belief that the court would
impose a probationary sentence. The prosecution did not request recusal, but I
decided in the circumstances that I could not judge the parties’ sentencing arguments
objectively. The case is People v. Giesen , No. 09CR75.

I do not recall any other situation in which I have recused or disqualified myself or
been asked to recuse or disqualify myself.

15. Public Office, Political Activities and Affiliations :

a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, state chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.

Town Prosecutor, Town of Bow Mar, Colorado, appointed by the late Mayor
Mary Carter (1 994 — 1 998).

Jefferson County Corrections Board, appointed by Board of County
Commissioners, Jefferson County, Colorado; the present Board of County
Commissioners members are Kathy Hartman, J. Kevin McCasky and Faye
Griffin. I have served as a board member since 1999 and as vice chair since 2004.

I have not been a candidate for elective office, nor have I been an unsuccessful
nominee for an appointed office.

30

187

b. List all memberships and offices held in and services rendered, whether

compensated or not, to any political party or election committee. If you have ever
held a position or played a role in a political campaign, identify the particulars of
the campaign, including the candidate, dates of the campaign, your title and
responsibilities.

I am a registered Democrat. I have not held an office in or tendered services to
any political party or organization. I have not played a role in a political
campaign.

1 6- Legal Career: Answer each part separately.

a. Describe chronologically your law practice and legal experience after graduation
from law school including:

i. whether you served as clerk Co a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;

I did not serve as a clerk to a judge.

ii. whether you practiced alone, and if so, the addresses and dates;

I have not practiced alone.

iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.

1972- 1998
Holland & Hart
555 17 ,h Street
Denver, Colorado 80202
Partner (1978-1998)

Associate (1972-1978)

1994-1998

Town of Bow Mar, Colorado
5191 Bow Mar Drive
Bow Mar, Colorado 80123
Town Prosecutor (part-time)

iv. whether you served as a mediator or arbitrator in alternative dispute
resolution proceedings and, if so, a description of the 1 0 most significant
matters with which you were involved in that capacity.

I have not served as a mediator or arbitrator.

31

188

b. Describe:

i. the genera! character of your law practice and indicate by date when its
character has changed over the years.

My practice focused on civil litigation. As an associate attorney I took
whatever cases were assigned, usually as a junior attorney on the case,
ranging from environmental and labor cases to all manner of commercial
disputes. As a partner 1 continued a broad commercial litigation practice.
However, in approximately 1 982 I began to develop a tort practice for the
law firm, including personal injury, products liability, and professional
negligence. In 1988 I handled a significant insurance coverage case on
behalf of a client whose business had become a Superfund cleanup site.
That led to a number of similar cases, and insurance coverage work
became a significant part of my practice from 1988 to 1998.

ii. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.

Typical clients in the first six years were natural resources companies
(mining, oil and gas) with environmental problems; corporations with
labor relations problems, wrongful discharge claims; and whatever else
was assigned by partners with whom I worked. From 1979 through 1981,
while in my then-firm’s new Washington, D.C. office, I continued my
commercial litigation practice out of Colorado but added D.C.-based
federal district and court of appeals cases on behalf of large mining
companies. From 1982 through 1998 I continued with a commercial
litigation practice on behalf of corporate clients but developed a plaintiff s
contingency fee practice as well. The clients were individuals who had
sustained injuries from accidents, defective products or professional
negligence. From 1988 through 1998 perhaps the majority of my clients
were companies with significant environmental problems who were
seeking insurance coverage for cleanup work under comprehensive
general liability policies.

c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.

i. Indicate the percentage of your practice in:

1 .

federal courts:

60%

2.

state courts of record:

39%

3.

other courts:

4.

administrative agencies:

1%

32

189

ii. Indicate the percentage of your practice in:

1. civil proceedings: 99%

2. criminal proceedings: 1%

d. State the number of cases in courts of record, including cases before
administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.

I estimate that I tried between 50 and 75 cases, nearly always as either sole
counsel or chief counsel.

i. What percentage of these trials were:

1 . jury: 65 %

2. non-jury: 35 %

e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any
oral argument transcripts before the Supreme Court in connection with your
practice.

I have not argued a case in the Supreme Court of the United States. I participated
in the preparation of an amicus brief on a petition for a writ of certiorari in
approximately 1973 and probably have had some role in the preparation of one or
two other certiorari petitions, but I have no record of them.

1 7. Litigation : Describe the ten (10) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give a capsule summary of
the substance of each case. Identify the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case:

a. the date of representation;

b. the name of the court and the name of the judge or judges before whom the case
was litigated; and

c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.

1 . FMC Corporation v. Liberty Mutual Ins. Co. and Lloyds of London , No.
643058, Superior Court, Santa Clara County, California, Hon. Frank
Cliff, 1994 to 1997.

33

190

I represented FMC Corporation in a series of four jury trials over a
three-year period. FMC owned a number of chemical and insecticide
plants in various states, all of which faced Superfund cleanups as a result
of seepage from waste ponds and other environmental contamination
that had occurred years earlier, generally in the 1940s through the 1 960s.
FMC’s liability insurers denied coverage for the costs of the cleanups. I
was the lead trial lawyer for FMC and worked with a staff of two junior
lawyers, a paralegal, and a secretary. Each trial covered several FMC
sites. The results varied, but in general, FMC received verdicts and
recovered damages, collectively amounting to between $20 and $30
million.

Opposing Counsel:

John M. Bentley
1001 Marshal! Street
Redwood City, CA 94063
Telephone: (650) 364-8200

David L. Suddendorf
One Maritime Plaza, #2475
San Francisco, CA 941 1 1
Telephone: (415) 834-3800

Peter J. Whalen

Four Embarcadero Center, #1000
San Francisco, CA 94111
Telephone: (415) 981-5550

2. Broderick Investment Co. v. Hartford, No. S6-Z- 1 033, United States
District Court for the District of Colorado, l ion. Zita Weinshienk, 1 988
to 1993.

I was lead trial counsel for the plaintiff, which owned a former wood
treatment plant that had become a Superfund site as a result of seepage
of wood treating chemicals from an unlined waste pond. The case was
first tried in 1989, resulting in what was then believed to be the first jury
verdict in the country in favor of a policyholder against a liability insurer
for cleanup of environmental damage. The case was reversed on appeal.
954 F.2d 601 (10th Cir. 1992). On retrial, we again received a
multimillion dollar jury verdict.

Opposing Counsel:

Thomas L. Roberts
1660 Wynkoop, #800
Denver, CO 80202
Telephone: (303) 575-9390

34

191

3, Zartman v. The TruGreen Companies, LLC, Larimer County or Weld
County District Court (approximately 1994).

This was a personal injury case in which I represented the plaintiff who
lost her leg when the defendant’s truck struck her motorcycle. It did not
go to trial. I do not recall the judge assignment, as it settled before going
before the court. I believe the case was filed in the early to mid 1 990s.
Despite my lack of recollection of these details, I include the case
because of its significance to the client and my law firm. 1 was able to
obtain a multimillion dollar settlement that provided lifelong care and
financial stability for the client. My law firm agreed to reduce the
percentage of the contingency fee to which it was entitled because the
settlement was negotiated fairly early in the case, and the additional
payment to the client helped her achieve the financial security she
needed. That was a precedent that the firm was willing to consider in
future cases if appropriate.

Opposing counsel:

Jonathan A. Cross
7100 East Belleview Avenue, #G-1 1
Greenwood Village, CO 80111
Telephone: (303) 333-4122

4. Schmutz v. Boulder Community Hospital, 83CV1 164-5, Boulder County
District Court, Hon. Murray Richtel, 1988 to 1992.

This was a product liability and medical negligence case. The plaintiff
suffered a stroke when an electric drill being used to cut through his
scalp to evacuate a subdural hematoma malfunctioned, causing the drill
to plunge into the brain. The case was first tied in 1989, primarily by
other counsel, resulting in a defense verdict. I took the case over on
appeal. The Supreme Court reversed and remanded for a new trial.
Schmutz v. BoIIes, 800 P.2d 1307 (Colo. 1990). 1 tried the case and
obtained a six-million dollar jury verdict. The case was later settled
while on appeal.

Opposing Counsel:

Thomas N. Alffey
999 18 ltl Street, #1600
Denver, CO 80202
Telephone: (303) 292-2700

Paul D Cooper
1512 Larimer Street, #600
Denver, CO 80202
Telephone: (303) 607-0077

35

192

Paul E. Scott:

1050 17 ,h Street, #2500
Denver, CO 80265
Telephone: (303) 825-2700

5. Westminster v. Shaw Heights, Jefferson County, Colorado District
Court, Hon. William Demoulin, 1990 to 1991 .

I represented the City of Westminster, Colorado, a suburb of Denver.
Water is a relatively scarce resource in Colorado and provokes
considerable litigation. This case involved a dispute over the rates and
the right of the City to terminate municipal water supply contracts. It
was interesting in that it involved sophisticated ratemaking analysis, and
it was highly important to the City’s ability to conserve its water rights
and to obtain a reasonable return on the amount it charged to out-of-City
consumers. It was tried to the Court, resulting in a judgment in favor of
the City. A later somewhat similar dispute between the same parties
resulted in a judgment for the consumer.

Opposing Counsel:

Richard L. Harring
1700 Lincoln Street, #3800
Denver, CO 80203
Telephone: (303) 839-3910

6. In re University Hills Fire, Denver District Court, Hon. Warren Martin,
1986 to 1987.

I represented the manufacturer of a fluorescent light ballast located in a
pharmacy that was said to be the source of a five-alarm fire that
destroyed a major shopping center in Denver, Colorado. I was lead trial
counsel. Our theory of defense, developed with the help of highly
qualified electrical and fire source and origin experts, was that the
ballast was not the cause of the fire; rather, the fire had started in another
location within the shopping center. After spelling out the theory in our
opening statement, supported by diagrams illustrating why the ballast
could not have caused the fire, the case settled. Our client’s insurance
carrier contributed a nominal amount to the settlement, as other
defendants paid the lion’s share.

Opposing Counsel:

Daniel W. Patterson
145 Garland Street
Denver, CO 80206
Telephone: (303) 907-3546

36

193

L. Tyrone Holt

1675 Broadway, #2100
Denver, CO 80202
Telephone; (303) 225-4221

7. Scott v. University of Colorado Health Sciences Center, Denver District
Court, Hon. John McMullen, 1986 to 1987.

I represented the plaintiff in a medical malpractice case. My client had
been in an automobile accident. Neurosurgeons diagnosed and treated a
closed head injury. They did not diagnose that Mr. Scott had also
sustained a dislocated and badly fractured hip. After a few days in the
Denver hospital, he was transported to his local hospital in Texas, where
doctors discovered the hip injury. During surgery an infection
developed, ultimately resulting in a hip replacement and the loss of four
inches of length in the impacted leg. The theory of the case was that the
neurosurgeons were negligent in failing to conduct a complete physical
examination that would have discovered the hip injury at a time when it
could have been successfully treated. I was lead trial counsel for the
plaintiff. The jury rendered a verdict for the defendant. The Court of
Appeals affirmed. My petition for a writ of certiorari to the Colorado
Supreme Court was granted on the issue of whether Colorado would
recognize the doctrine of “loss of a significant chance” as a viable theory
of causation and damages. However, after oral argument, the Court
retroactively denied certiorari as improvidently granted.

Opposing Counsel;

Mark A. Fogg
1050 17 !h Street, #2500
Denver, CO 80265
Telephone; (303) 825-2700

Kevin J. Kuhn

1801 California Street, #3600
Denver, CO 80202
Telephone: (303) 244-1 800

8. Bertrand v. BMX, Inc,, United States District Court for the District of
Colorado, Hon. Alfred A. Arraj, 1984 to 1985.

This was the first plaintiff’s personal injury case I took to trial. The
client was a teenage boy who was riding a motocross bicycle when,
during a jump, the front wheel fell off, causing him to crash and sustain
a closed head injury. Our theory was that the front wheel retention
device had been improperly designed and had failed, thus resulting in
the accident. The defense was that the wheel had come off as a result of

37

194

the accident, and that there was nothing defective or unreasonably
dangerous about its design. A key piece of evidence was a policeman’s
testimony that he observed two marks in the dirt that were consistent
with the impact of the front forks of a bicycle. The case settled for
several hundred thousand dollars on the third day of trial.

Opposing Counsel:

Geoffrey S. Race
1700 Broadway, #1020
Denver, CO 80290
Telephone: (303) 830-1212

9. Cabinet Mountains Wilderness/Scotchman 's Peak Grizzly Bears v.
Peterson, 685 F.2d 678 (D.C. Cir. 1982).

I represented Asarco, which wished to conduct mining operations in
northwest Montana. The Sierra Club opposed the operation because of
concern about its impact on a small population of grizzly bears in the
area. The legal issues concerned the National Environmental Policy Act
and the Endangered Species Act. We obtained an order of summary
judgment in the district court, Hon. Gerhard A. Gesell, 510 F. Supp.

1 1 86, which the U.S. Court of Appeals for the District of Columbia
Circuit affirmed on appeal. The case established important principles
under the two federal statutes and permitted the mining operation.

Opposing Counsel:

Karin P. Sheldon
2260 Baseline Road
Boulder, CO 80302
Telephone: (303) 444- 1 888

10. Mazurek v. Nielsen, 599 P.2d 269 (Colo. App. 1979).

My client was a homeowner who was defrauded by a seller and the
involved realtors. The jury entered a verdict for the homeowner that was
not huge, although it was substantial in the eyes of the client and
substantial for the location (Routt County, Hon. Donald Lorenz) at the
time. The judgment was reversed on appeal based upon a faulty jury
instruction but later settled without a retrial.

Opposing counsel:

James C. Vaughters
5981 South Lima Street
F.nglewood, CO 801 1 1
Telephone: (303) 771-7103

38

195

18. Legal Activities : Describe the most significant legal activities you have pursued,

including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organization(s) for whom you performed lobbying activities and describe
the lobbying activities you performed on behalf of such client(s) or organizations(s).
(Note: As to any facts requested in this question, please omit any information protected
by the attorney-client privilege.)

While in private practice, 1972 to 1998, ! focused on a combination of commercial
litigation and personal injury litigation, representing both plaintiffs and defendants. I
opened the Washington, D.C. office of my law firm. I served on a number of committees
within the firm, including being a member of its Management Committee and
Chairperson of its Litigation Department. My pro bono activities focused on
representation of individuals in personal injury claims and occasional criminal defense
and family law matters.

I also served as the Town Prosecutor for my town, a suburb of Denver, prosecuting
municipal ordinance violations on a pro bono basis. I was actively involved in leaching
trial advocacy at the National Institute for Trial Advocacy, the University of Colorado
Law School, and within my law firm. I was one of the founders of the firm’s in-house
graphics and in-house trial consultant departments. I participated in bar association
committees, but my primary office was as the co-chair for a period of three years of the
Insurance Coverage Committee of the Litigation Section of the American Bar
Association. This was a large committee of some 1500 to 2000 members at the time.

As a district judge I have handled a mixed docket of criminal (felony), civil and domestic
relations cases. In 2003 I was appointed Chief Judge by the Chief Justice of the Colorado
Supreme Court, thereby taking on substantia! administrative responsibilities in addition to
a fLilI case load. I have served on several committees within the Judicial Branch, most
recently a committee that reviewed, modified and proposed to the Supreme Court
Colorado’s version of the Model Code of Judicial Discipline.

I have been actively involved in numerous community activities, many of which involve
the criminal justice system, but others that involve the public schools and a program to
introduce competitive debating into certain low income, inner city schools in Denver.
Perhaps the most prominent of those activities is the Criminal Justice Strategic Planning
Committee, which I have chaired since January 2004. This committee is comprised of
key individuals in the criminal justice community (District Attorney, head Public
Defender, private defense bar. Sheriff, Police Chiefs of all cities within Jefferson County,
Chief Probation Officer, County Commissioners, Superintendent of Schools, local
politicians, Department of Corrections, and lower court judges). The committee has a
planning staff, and over the years it has implemented creative procedures to improve our
criminal justice system that are receiving national attention. I have also maintained good
working relationships with our local bar association and with the state legislators from
Jefferson County.

39

196

I have performed no lobbying activities on behalf of any client or organization.

19. Teaching : What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.

I served on the faculty of the mid-term trial advocacy course at the University of
Colorado Law School in 1984, 1985, 1987, 1989, 1991, and 1998. I have twice made a
presentation to a Criminal Procedure class at the University of Colorado Law School
(Prof. William T. Pizzi) on the subject of plea bargaining. The first of these was on
March 7, 2002. The second class was probably in 2003 or 2004. On June 21, 2010 1
presented a one and one-half hour “lecture” on motions practice and trials to the court to
a “Principles of Persuasion” class at the University of Denver Law School. 1 am
attaching the notes I used for the presentation.

20. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest.

I will receive payments, upon retirement, from the Colorado Public Employees
Retirement Association.

21. Outside Commitments During Court Service : Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.

I have no such plans.

22. Sources of Income : List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding $500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1978, may be substituted here).

See attached Financial Disclosure Report.

23. Statement of Net Worth : Please complete the attached financial net worth statement in
detail (add schedules as called for).

See attached Net Worth Statement.

40

197

24. Potential Conflicts of Interest :

a. Identify the family members or other persons, parties, categories of litigation, and
financial arrangements that are likely to present potential conflicts-of-interest
when you first assume the position to which you have been nominated. Explain
how you would address any such conflict if it were to arise.

I know of nothing that would present a potential conflict of interest.

b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.

If any matter were to arise that involved an actual or potential conflict of interest,

I would handle it by careful and diligent application of the Code of Conduct for
United States Judges as well as other relevant Canons and statutory provisions.

25. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar
Association’s Code of Professional Responsibility calls for “every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving the disadvantaged.” Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.

During my years in practice I handled some Thursday Night Bar (Metro Volunteer
Lawyers) appointments (domestic and civil cases). I took occasional appointments in
criminal cases in both Denver and Adams counties. I took one plaintiffs employment
discrimination case at the request of United States District Judge Sherman Finesilver that
ended up being tried and ultimately resolved in the Tenth Circuit. Blondo v. Bailor, 548
F.2d 301 (10th Cir. 1977). In addition, I represented a variety of Holland & Hart
employees in all manner of litigation matters where they could not afford counsel over
the years. I did a great deal of teaching, speaking and writing. I served as the Town
Prosecutor for my town. I estimate that I devoted an average of 50-100 hours per year to
pro bono activities of one kind or another.

26. Selection Process :

a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
the interviews in which you participated). Is there a selection commission in your
jurisdiction to recommend candidates for nomination to the federal courts? If so,
please include that process in your description, as well as whether the commission
recommended your nomination. List the dates of all interviews or
communications you had with the White House staff or the Justice Department
regarding this nomination. Do not include any contacts with Federal Bureau of
Investigation personnel concerning your nomination.

41

198

In 2009 United States Senators Mark Udall and Michael Bennet appointed a
bipartisan selection commission to recommend candidates for two vacancies on
the District Court. I submitted an application, was interviewed by the commission
on May 1 5, 2009, was among applicants recommended to the two Senators, and
was interviewed by Senators Udall and Bennet on June 12, 2009. Later in June
2009 t was advised that I was one of six applicants whose names were being sent
to the White House by the two Senators. On June 8, 2010, Senator Udall’s office
informed me that I would be hearing from the White House.

Since June 1 0, 20 1 0, 1 have been in contact with pre-nomination officials at the
Department of Justice. On July 30, 2010, 1 interviewed with attorneys from the
White House Counsel’s Office and the Department of Justice. On September 29,
2010, the President submitted my nomination to the Senate.

b. Has anyone involved in the process of selecting you as a judicial nominee

discussed with you any currently pending or specific case, legal issue or question
in a manner that could reasonably be interpreted as seeking any express or
implied assurances concerning your position on such case, issue, or question? If
so, explain fully.

No.

42

199

AOIO
Rev. mOOS

FINANCIAL DISCLOSURE REPORT
NOMINATION FILING

Report Required by the Ethics
b) Government Acl tf!978
(SU.S.C.app.SSlOmtJ)

1. faw {Urn taaat, ftm, middle ioittal)

Jacisoa, RkhanlB.

2. Court er Orzulxatie*

UNITED STATES DISTRICT COURT FOR THE DISTR
1CT OF COLORADO

X D*!e af Report

09129/2010

A TWtt {Article H3 judge* iwJiate etfive of senior it* bis;
m*j^*tn!irjojc!ge* iadiceic full- or pin -time)

DISTRICT JUDGE

5*. Report Type fthctk spproprirtciypr)
g] Noaiiiwwo. De*e 09/29/2010

□ “■* O □

6. Rtpertteg Period

01/01/2009

S>. rTj Amended Repeal

7. Chambers er Office ASdia
1D0 JEFFERSON COUNTY PARKWAY

division (,

GOLDEN CO 80401

L Ob (be bash of (be Ufbtwtki CMtilKd la ibla Rqnt ud Bay
eodifkstJoM prrteJBict SKrrta, ft 1*, la my opinion, la cumpteiu*
with ippBnUe lew* Bad rqabUon.

Rrvtewtag Officer

IMPORTANT NOTES: The Int&uctinne oceumpanying tkit form mmrtbeJbRatved. Complete all parti,
checking the NONE box- for cock pari where you hevt no repo rtaMe information. Sign on last page.

I. POST riONS. (jrrpaHbfg inAirUuel only; aepp, 9-JJ of/UUq txamniavj
f7 1 NONE (No reportable positions.)

EPSIHOH

1.

z

x

4.

5.

II. AGREEMENTS. (U*t*HTl*x I^Mdu»l ~J j: U»ep.l4-It ofJUl«x )

[/I NONE (No reportable agreements.)

DATE

200

FINANCIAL DISCLOSURE REPORT

Nuc of Pvki Rtporlteg

Date of Report

Page 2 of 17

Jtdoon, Mk turd B.

09/29/2010

LII, NON-INVESTMENT INCOME. (ftrportiMf Lt&ddmMl sutd spa inc see pp. 1 7-14 of fding batrucdetSM. )

A- Filer’s Non-Investment Income

j | NONE (No reportable non-investment Income.)

INCOME

(yown, rotipouse's)

1.2010

STATE OF COLORADO

S96.44S.50

2.2009

STATE OF COLORADO

Si 2511 6. 64

3.2008

STATE OF COLORADO

S9S.073.48

4.

B. Spouse's Non-Investment Income -Jfyou i sen «umn< during an? portUmo/th a reporting y*a, nmpUu this ifrtlwt

(Dollar catmint not m/tdmd tsscepi for komtrrsrioj

{ | NONE (No reportable nan- investment income.)

1 . 20 10 SELT-EMPLOYED TRAVEL AGENT

12009

SELF-EMPLOYED TRAVEL AO ENT

3.

4.

IV. REIMBURSEMENTS — trmjuperlalio*, lodging food, e*Urt*lnas*nt

(Includes those to j pause an* dependent children; tee pp. 73-37 ofJiUng Instructions.)

| | NONE (No reportable reimbursements.)

SOURCE DATES LOCATION

PURPOSE

1. EXEMPT

201

FINANCIAL DISCLOSURE REPORT

Page 3 of 17

Kim ofPnxa Rtpcrflag

Jacbon, RJchml B.

DateefRipori

09/29/2010

V. GIFTS. {Jodmdatknaoio tpemot oit4 drjtcmgom cJJUion; bco pp. offiMng itotjoalon)

| | NONE (No reportable gifts.)

SOURCE

1. EXEMPT

DESCRIPTION

VALUE

2.

VT » LIABILITIES. (hxloia (ktne of jpo ou trU ieptndau ckUimt- ter pp. JU! af filing Inanrtion^)
( V | NONE (No reportable liabilities.)

CREDITOR

202

FINANCIAL DISCLOSURE REPORT

Ntmt efPtnn Reporting

Date of Rape ri

Page 4 of 17

Jackson, Richard B.

09/29/2010

VII. INVESTMENTS and TRUSTS -i— « ,

f 1 NONE (No reportable income, assets, or transactions.)

A.

Description of Audi
fincliafiag crust un rta)

B.

I&ccise daring
teporana paiod

C.

Cross value Mead of
repotting period

D.

Tnauctiens during reporting period

Place *<X)" diet each asvi
exempt from prior diicltmar

<0

Amount
Code I
(A-H>

(2)

Tyj*{c.g„

□rim.)

(1)

Value

Code 2

<«*)

O)

Valve

MOtiod

Cade?

(Q-W)

(I)

fey.vcJi,

redecsptiGD)

(2)

Dale

Month -
Day

P>

Value

Code 2
(J-P)

(*)

Cam

Code t
(A-H)

15)

Identity pf
buyaitieikr
(if private

tnunaeikm)

i.

IRAfll

Exempt

i

-VANGUARD VAJLUE VIPERS

B

Dividajd

L

T

3.

-VANGUARD FT SB ALL WORLD EX US
INDEX

B

H

B

4.

-VANGUARD EXTENDED MKT VIPERS

A

Dividend

L

T

4.

-VANGUARD GROWTH VIPERS

B

Dividend

L

T

6.

-BNY MELLON MUNICIPAL OPPOR
TUNTT1ES FUND

A

Dividend

H

B

7.

C

Dividend

1

B

8,

-US TREASURY NOTE 1/201J

A

Dividend

K

T

9.

-US TREASURY NOTE DTD 10/20! 2

A

Dividend

B

B

JO.

-ALCOA

A

Dividend

11.

-APACHE CORP

A

Dividend

■ I

13.

-BOEINOCORP

A

Dividend

■

13.

-BANK OF AMERICA CORP

A

Dividend

14.

-CONOCOPHnilPS

A

Dividend

15.

-AMGEN INC

A

Dividend

16-

•EMERSON RLECT1UC CO

A

Dividend

17.

-IBM

A

Dividend

A-JUMOixlo.

B-llXDl-n^OO

C -13^01 - (5,006

D -I Loot -Iiuxn

E-»l JJJ01 - 15U.DO!

(S« Mnn Bf and CM)

P -150,001 -SiOO^WJ

G -ri 10C.DQ1 .(l^OOtOOO

HI -»1^00,®t - UsOOOpOO

H2 -Mae One 15JWUM

2. Vatu* Cafe

K-flSAH-SJOdCO

L -UHEO) . Dotyieo

M -lia^ooi . nsyno

( Sre Cotmrf Cl and DJ)

N<WJi®I-l»Wao
pj . laojwnMO

O-WMl -St. WOOD

ri -ji , 000 X 01 - ts waste

N -Mm ftm UftWWi

n — u^Dopoi - sujxopoo

3, V*!n* Meftod Cafe
(See Catatno CT)

QxAppfeal

U-BcokVfe

B -Con QLcal EnaC Only)
vmoar

203

Nub erPuwn Ripflk)

Date of Report

Jachaon, Richard B.

09/29/20! 0

VIL INVESTMENTS and TRUSTS

1~~ 1 NONE (No importable income, assets, or transactions.)

V trtpf. S 4 S 6 of filing lttiran£a*x I

Docripooo of Aaaoo
{(□chafing (not bk»)

W»ee “(X)“ after caets aaact
eannpt fioffl prior (fiteJcoan

18. -HONEYWELL INTL INC

19. -GENERAL ELECTRIC CO

20. -J-P MORGAN CHASE

23. -MICROSOFT CORE

24. -XTO ENERGY INC ~~~

25. -WELLS FARGO AND CO

26. -ST JUDE MEDICAL INC

27 . -DNP SELECT INCOME FD INC

28. -XCEL ENERGY INC

29. -PUBLIC STORAGE PFD

30. -CITTaROUP CAP DC PFD STIC

31. -TEMPLETON GLOBAL INCOME FUND

32. -GEN ELEC CAP 05.75%

33. -LA SALLE FUNDING LLC 4,5%

34. -AMERICAN WASHINGTON MUTUAL
INVTA

iDcome durag Orau vatae al end of Tnntactiooj during reporting Period

reporting period reporting period

(I) | « cij i <2) (5 (2) 0) C4) (5)

Amount Type(e.g., Value Value Type (e g.. Date Value Oain hkatriy of

Code! iSa^TOit, Code! Melted buy.aeJl, Month- Code 2 Code I buyu/adkr

(A-H) oriat) {J-P) Code 3 redemption) Day (J-P) (A-H) (if private

(Q-W) wcuactioa)

204

Name of Perron Reporting

Q»te of Repo if

JBcktoo, Richard B.

09/29J201 0

VII. INVESTMENTS and TRUSTS

| 1 NONE (No reportable income, assets, or transactions.)

Dracriptkn of Ar*a»
(iiarhdirg true uaco)

Plice *(X)* Uhl ini' iisct

lEtoa» during OtwB vain al end of

repotting period reporting period

co I m in I (»

CodeJ j djv., real, j Code 2

35. -GROWTH FD AM HR INC

36. -NEW ECONOMY FDSH BEN INT

37. -NEW WORLD FUND F

3B. -SMALLCAP WORLD FD INC COM

39. -US TREASURY NOTE 7/2010

40. -GENENTECH INC.

4 1 . BROKERAGE ACCOUNT Ml

j 42. FED HOME LN MTG CORP

43. FED HOME LOAN BANKS

44. US TREASURY NT 11/12

45. US TREAS INFLATION IND BOND

46, US TREASURY NOTE 6/201 6

47. US TREASURY NOTE 12/16

48. US TREASURY NOTE 7/17

J 49. US TREASURY NOTE 5/10

I

50. US TREASURY BILL 6/9

51. GEN ELECT CAP CFR 9/17

Itmwcooo* during reporting penal

Interest

bitaat

Interest

Interest

Interest

A I Interest

(!)

<2>

0)

»

(5)

Tn*(=-s-.

Date

Vahid.

1 Q*io

Identity of

buy. *11,

Month*

Code 2

Cede 1

buyo/eelter

redemptlos)

Dty

(J-P)

(A-H)

(If private
tnmoction)

(Set ColtnreuBl trviDt)
1 Value CoA»

(Set Cnhm Cl ad Dl)

J. V*I*< Mnbod Ctada
(S« Catumc C3)

A *41.000™ hat

P-1M,0oi-J1WX0

N -SMOlOOI ■ ISOO^BD
n -mooaoot . rsftooAoon
Q.eAppnfatl

U-Beofc Vekai

B-S 1,001 - 1 2. WO

G*ftOOj3Di-SlAO/IOO

-0X000

O<J00£li.!i.00CUtt0

C-tUci -sl^nu D-JV»t -1151*0

Ul -J 1X001*1 -U.DOXDOO >D-Ma*thHUjnum

L-SVXQOI . JiaXDCtl M-T1UQJXM - CiftOCO

?i*ffxavBi-u/wu>» n “iw«xooi - ci^otxooo

7* *u™ is™ utvno.an

StWnnrt T-C-iHjrto

205

FINANCIAL DISCLOSURE REPORT

NUM of p£W» Reporting

Data of Report

Page 7 of 1 7

Jetkwn, Richard B.

09/79/20)0

VII. INVESTMENTS and TRUSTS -*»

f " 1 NONE (No reportable income, assets, ar transactions •.)

S2. WELLS FARGO CO 5.25% UMI

B

Intcrcft

T

53- AETNA INC

B

bierest

B

T

54. PFIZER INC

B

Inimsl

B

T

■

■

■

55. GOLDMAN SACHS GROUP INC

B

Inkacst

K

T

56. AT&TINC

B

Intocd

K

B

57. [SHARES SAP GSCI COMMODITY END
EX PD TRUST

*

Interest

K

T

58 . AIM STTT TREASURY PORTFOLIO

A

Intao*

L

T

59. SPDR TRUST SERIES 1

D

Dividend

M

T

60. VANOURD GROWTH ETF

B

Dividend

6t. 1 SHARPS TR MTDCAP

C

Dividend

L

T

62. VANGUARD VALUE

0

Dividend

63. SPDR DOW /ONES INDUSTRIAL AVER
AGE

D

Dividend

M

T

64. 1 SHARES MSCI EAFE INDX FUND

D

Dividend

M

T

65. I SHARES TR

a

Dividend

M

T

66. [SHARES RUSSELL 1000 INDEX FUND

c

Dividend

M

T

67. 1 8 HARES TR SAP SMALL CAP 600

A

Dividend

L

T

68. VANGUARD EMERGING MARKETS E
TF

B

Dividend

L

T

1. himQia Ms

(SoCrtencaBlaadM)
iVUnaCodca
(SwCatwtMCI ■odCO)

3.VU»»MittodCoda
fSocCobmui Q>

A-JlflCOorkoa*

P -5 $40)1 -1100,000
J -US.BGD or km
U ■4WUI - 1MS.ODO

-SJOWW00

Q-A flnfaal
tl •Dank Value

&-SIJMI .tt^CO

K-JtljKt -mono
o-sxtifci -sijxajxa

R -Co* (Rod £*»*> Only)
V-O0 *t

C -0^01-11,000
HI -51,000.001 -Ufl00,CC«
L-UC,CD! -5100,000
pj -si.occu»i - lycon/m
r* »M» <Eb UOJWMXJO

D-J5.COI -113.000
m -M<n Am 15X00,000
M-Siookoot.nxuioo
n -M,000j»l - JBjOOOjOM

T-GnlW-ta

E-*IiWI-J»flOO

206

FINANCIAL DISCLOSURE REPORT

Nu»t of Peraea Reporting

Date of Report

Page 8 of 17

JmIuoo, Richard B-

09/29/2010

VU. INVESTMENTS and TRUSTS -

| | NONE (No reportable income, assets, or transactions.)

rpp. Ji-ft hunrdhaj

A.

Oacripdoa ofAuco

(including trail wed)

B.

Ikwdc during
reporting period

1 a

1 Qrt»« vnloe >J aid of
reporting period

0.

Traoiaction* during report®* period

Place ‘00" after each uid

cm emp from pi at diaclaaiiic

j (0

Arooant
Code 1
(AH)

(1)

Tyje(c.g., j
di*..ira.
or int)

1 °> !
i Value j
i CodoS |
! («> ;

! J

(2)

Vrioe

Method

Code3

(Q-W)

0>

| 'Np«(c-R,

boy.uU,
redanprion)

m

Dale |

»«y !

<3) 1

Value

Code 2
(J.P)

(*) '
Gmia
Code 1 |
(A-H) j

(5)

Ides tiiy of
buyrr/teller
(tfprivue

I acitartko)

69, FED HM LN MTQ CORP

C

Dividend

M

T

70, FED HOME LOAN BANK

c

Dividend

M

T

■

71. FED NAT MTG ASSN

c

Dividend

■

72- 40|(k)*l

■

■

73. -PTMCO TOTAL RETURN FUND

c

Dividend

K.

T

■

■

74. -DODOES A COX BALANCED FUND

D

Dividend

K

T

75. -DODGE & COX STOCK FUND

■

J

T

76. -FIDELITY CONTRAFUND

c

Dividend

J

T

77. -RAINIER LG CAP GROWTH EQUITY

B

Dividend

i

T

78. -AMERICAN FUNDS EUROPACIFIC GR

H

J

T

79. BROKERAGE ACCOUNT M

—

80. CHEVRON CORP

C

Dividend

K

T

■

a

81. EXXONMOBIL

D

DMdead

L

T

■

82. AIR PRDTS AND CHEMICALS rNC

B

Dividend

K

T

83. EMERSON ELECTRIC CO

A

Dividend

K

T

^

84. GENERAL ELECTRIC CO

A

Dividend

K

T

85. UNION PAC CORP

A

Dividend

K

T

■

1. limwGrfcCala.

A-S1.CCD or bar

C4LM1 -H.OG0

o-ss.oot-sfva>

B-UNMI-MQ/MO

fS*« Cofcraa Dr and Da)

P -tSAQO) . IIOO/KO

c-iioo/ui -iion/WQ

Hi -si/ao/xi -Ujxnxoo

ra -Mm lUo li.OCO.tIU

IVJuCede.

J-HS/BOtaleu

It 413.001 - IS-XOOO

L-UUMI -ll«.aD0

M-tlCO^OI - UWiOO

(See C-ohonea Cl and DJI

N-nvVHH-uavLC

o-uou/oi -jrjcaooo

PI -«1 J330JOQI - 15XVQJ30

n-wausi -aswao

n -J23.coo,rni • m,wnco

M -Mm *«o MOCOO^QO

3. ViIjk Medul Data

QpA^aitel

R-Oaifllo«l Em 0*1*)

S Vmaareeat

T-CMbUrtn

(See Cnturoi C3)

UHD«k Vahio

V-Orkn

207

FINANCIAL DISCLOSURE REPORT

KotafftiKn Rrpcrri&g

DKrofRapon

Page 9 of 17

Jidooo, Richard EL

09 / 29/2010

VII. INVESTMENTS and TRUSTS

[ | NONE (No reportable income, assets, or transactions.)

r*pp> S4-64 of filing httpitcSkixL)

Desertpdna of Aura
(iochidififl tnur M»cb)

Place *(X}* aAcr each and
crfciijil fiuni prinr diadoswe

0>

Amoaai

Cade!

(x-H)

( 2 )

TVpefcB-.

orint.)

Oreo value u end of

reporting period

CO

Valus

Cede!

<J-P>

C)

Vrioe

Code 3
(Q-W)

TrmaartJora during rcjwrrifl^ period

(0

P)

<3)

<*>

(J)

Date.

Vatoe

Q*in

Ideauryof

*wy, wiL

-

Code!

Code 1

buyer AcUor

mknptioD)

D«y

o-n

(A-H)

(if private
tntmacrioa)

B&. UNITED TECHNOLOGIES CORP

B

Dividend

K

T

87. WALT DISNEY CO

A

Dividend

J

T

■

88. JOHNSON CT1S INC

A

Dividend

1

T

■

88. STARBUCKS OORP

C

Dividend

M

T

■

■

90. NESTLE S A SPONSORED ADR REPSTC,
REO

B

Dividend

K

T

91. PEPSICO INC

B

Dividend

K

T

92. PROCTER & GAMBLE CO

■

Dividend

K

T

93. ABBOTT LABORATORIES

*

Dividend

J

T

94. JOHNSON & JOHNSON

C

Dividend

K

T

95. PFIZER TNC

A

Dividend

J

T

96. TEVA PHARMACEUTICAL 1NDS LTS

A

Dividend

J

T

97. THERMO FISHER SCIENTIFIC INC

H

J

T

98. INVESCOLTD

A

Dividend

J

T

99. ACE LTD

A

Dividend

K.

T

100. JP MORGAN CHASE &CO

A

Dividend

J

T

■

■

101. MOROAN 5TANLEY

A

Dividend

I

T

102. STATE STREET CORP

A

Dividend

J

T

I. Gain e^W 1

A Him

D-J), 001 -LOCO

C-tUM-UjXD

D'UWl -M9.0QD

b ■stsjui -SKuxn

(S« Cofiurm Dt mi CM)

POOiOOi-siixwwa

GfiaMD) -II3M5JXO

hi-djoixmi -wooden

H3 -Hear ifcao MdCtOOO

1 Vilac Coda

;«UUXB oka

K-i!5,0« -CLLODO

L-WMXH-JK^QOO

M-*100uOOS -C»3i£0

CkoUlmCl uSDI)

N*UUCU»I-15CTXOCO

0 -*wy» 1 - J 1 tSOfUi

71 - iipocwoo

n -iLoauxu - tu.fxjG.ooo

73 -J23J3CCJXJI - iWXXLDM

W -Um au UG£0B r n0O

LVdMMrdndCata

B“Ct«i{B<aJ EaB&OoJv)

9 n i' l a m i n ■ 1

T-caM»w

(SmCntwnoCJ)

U-8«± Value

Y-CMer

W-fAnafai

208

FINANCIAL DISCLOSURE REPORT

Ne»c *f Pint* Report! aj

Dates! Ripen

Page 10 of 17

Jsckson, RJeE*ni B.

09/29/2010

VII, INVESTMENTS and TRUSTS -i-mar, cr«»dWr f7*=U4«a *m*6fvt*m*4icpt>*auckairtM;i**pp. 34-60 ef/a tag fcu»w*bu(S>

|~ | NONE (No reportable income, assets, or transactions.)

A

Dtsciipioo ofAuea
(including trull aaacta)

B.

}aeoB» during,
reporting poiod

a

Grow rate »i end of
reporting period

D.

Tnmnctjooj during repotting period

PImc '00' aft* ath uk 1

dcinpt ftroi prior diacWuic

(I)

Amoum
C«i, 1
(A-H)

(2)

Type (eg.,

or InL)

(0

Value

Code!

(W)

P>

Value

Method

Cck3

(Q.W)

0)

Typefag..
buy, id L,
jwtapnoo)

W

Due

Mood) ■

D*y

O)

Valae

Code 2
(J-P)

w

Gain
Code 1
(A-H)

(5)

Identity of
boyeWteUcr
(if private
(mwacOcm)

103. US BANCORP

A

Dividend

J

T

104. WELLS FARGO AND CO

A

Dividend

i

T

v'

■

105. ACCENTURE PLC

A

Dividend

J

T

■

■

106. APPLE INC

A

None

U

T

107. CISCO SYSTEMS INC

A

None

J

T

108. GOOGLE INC

A

Non*

J

T

109. HHWLETT PACKARD CO

_

A

Dividend

J

T

110. INTEL CORP

A

Dividend

J

T

111. MASTERCARD INC

A

Dividend

J

T

112. MICROSOFT CORP

■

J

T

113. SEMPRA ENERGY

A

Dividend

J

T

114. 1SHARES MSC1 EAFE INDEX FD

C

Dividend

M

T

ti5. 1SHARES MSCI EMERGING MARKETS
FD

0

Dividend

K

T

116. VANGUARD EXTENDED MARKET VI
PERS INDEX FUND

B

Dividend

L

T

117. DENVER CO CITY A CTY SCHOOL DS
TRJCT

B

Interest

L

T

118. CAOTLE PINES NORTH MET D 1ST CO

D

Interest

L

T

119. THORNTON CO DTD

C

Interest

L

T

(SckCWmhuBI -JEW)
1 Valne Odea
(See Cal iin a Ct nt Dl)

A-S»,a»<*kat
r^woot
J -MV 00 or*a»
x-nso^i-uoo^ta
n -usjxxk oh - sm, oGo,iioo

Q-Afliniwl
U -fl o* V.Wi

H-JI.COI .JLSOO

c-iwoei -iisnyxa
K-tiijni -uojW)
o^jflwo!- n.ooo pa?

K ■<* (V^t [m> Otfy)
V-Oti*r

C'C^si-uffe
HI-JI.UMPOi-JMOMeO
L-lMpm -ZICCJXO

pi "Vjxnoot • Mpcopm

P* -Mm (hM UOJXClOoa
SeAwuaM

D-SJPO) -JISpOO
H? -Mfre tUc, UJMOpOO
M-St0tM»i-£2SQ,ODO
n -M, 000,001 - S3i SXQ/KO

i. VaA* N=aod CMa
(SceCahimoCI)

T-4U>Ma

209

FINANCIAL DISCLOSURE REPORT

Nuoe of Fovea TUpeftlsg 1

DM* *1 Report

Page 11 of 17

Jncltiea, Richard B.

09/25*2010

VII. INVESTMENTS and TRUSTS -

( | NONE (No reportable income, assets, or transactions.)

et pp. JWJ effiMag k&aaiaMiJ

A.

Deaeriptioa of Ancti
(iochafiog mill ancti)

B,

lneotoo daring
npevtuig period

C.

Groa value*] end of

reporting period

D.

Tn**aet»iu (faring reporting period

Place "(X)* altar aci spa
aanpt tom poo* diVlean

ro

Code 1
(AH)

m

Type(tg..

di^rcnt,

Mist.)

0)

Vilut

Code 2
(IP)

a)

VaAx:

Meriod

Cat 3
(Q-W>

a)

Trp#(e.g..

tuy.KH,

redemption)

m

Doe

Mooli -

Day

(3)

Value

Code 2

(MO

«

Code 1
(A-H)

(5)

Identity of

boyrr/rcller

(irpfivBe

OTaattwa)

120. RANOELY CO SCH D1ST RE 4

C

IfltOKl

L

T

121. SNOWMASS V1G CO

c

Interest

L

T

122. FLORIDA HSO FIN CORP REV

B

Interest

K

T

123. TJNIV COLOR ENTERPRISE SYS REV

c

Interest

L

T

124. METROPOLITAN TRANSN AUTO NY

c

Intoest

L

T

125. METRO WASTEWTR RECLAM DSTR
CO

c

Intrust

L

T

126. EL PASO CTY CO REV

c

Interest

L

T

127. BNY MELLON MUNICIPAL OPPORT
UNITIES

B

Dividend

K

T

128, BNY MELLON NATL MUNI MONEY
MKT FUND

A

Dividend

M

T

129. HILLSBOROUGH CTY FL BOND

c

Interest

130. ORACLE CORP

A

Dividend

131. COMCAST COW

A

Dividend

132. HUDSON CfTY BANCORP INC

A

Dividend

133. EXELON CORP

A

Dividend

134. AURORA CO BOND

B

Inter at

133. EATON CORP

A

Dividend

136. AMERICAN EXPRESS CO

A

Dividend

(Sac CotamiB III «od Df)
X VJ«Codr.

C5™ Coturo* Cl aad 03)

A-JIjnJorW
F-LM.OO! -*1 30,000
J *3)S£CC w k»j
w-ji3£^»i . uauuo

3. V*Joc M«iaJ ado
(SatCelm C7)

n -assxnsm - u

QnAffnml

D4«tVit>

R -31,001 -» JO#

QKlOlMOl-JtIWVfXq

K- 313 A 31

O-tiOIVBt-JI.OOWWI

RM^s(Ra)EauOaty)

v-a.

C -OJOI . M.OGO
HI •11,000001 -XUOQjOOO
L -330,001 .3100,00
M -Jl^OD^Ot - UUVUOO
N-M«iaauui»,oa>

D-15JBI -JliOOB
IQ-More tan UflWOI
M-HMUBt-SUOJW)

n -ispx/xi - ra.wcxni

TOabMatd

B <-*15,001 -KOJMa

210

FINANCIAL DISCLOSURE REPORT I Nttte of fcneo Reporting

Page 12 of 17 [ Jacknoo, Richard B.

D«te of Report
09/2W2010

VII. INVESTMENTS And TRUSTS-Anf t.r -i.-iv — • r-rj-.f-i ** 'fftig ^ nr r — '-m- J

1 | NONE (Wo rcportahte income, assets, or transactions.)

Oacripdoo of Aisca
(including tmti mcti)

Income dona 5
reporting period

Greut ratue tl end a F

Tnmicaoei during n^soting period

(«>

O)

i 0)

(2)

(1)

(2)

' (3)

( 4 ) ;

( 5 )

PUco *(X)" after twA and

AroounJ

| Typers,

! VmJaa

; Value

Typefr*.

Dale

VUwr

Q«in

Uardty of

cuoipi fwm prior dirclooeje

(AH)

dir, ran,
or tot)

! CwJa 2
<M*>

! Ursh^l

Coded

(Q-W)

twjr.ndiL

redemption)

Mocii -
D*y

Code 2

(J-P>

Code ! |
(A H) |

i

buyrr/utkr
(if pnvwc
transition)

137. THE TRAVELERS COMPANIES INC

138. ISRARF5 S & P MIDCAP 400

139. ISHARES S& P SMALLCAP 600

140. NEW JERSEY STATE BOND

141. NORTHERN TR CORP

142. ALLSTATE CORP

143, OMNICOM OROUP INC

145. JOHNSON CTLS INC

146. CEF SELECT SECTOR SPDR FD HEAL
THCARE

147. TECHNOLOGY SELECT SECTOR SPDR
FUND

149. -DREYFUS PR LRO CAP EQ FD

1 50. -VANGUARD FTSE ALL WORLD EX US
INDEX FD

151. -VANGUARD EXTEND MKT VIPERS IN
DRXFD

152. -VNY MELLON INTERM BOND FUND
LASS M

153. -DREYFUS PREMIER LTD TERM HIGH | A 1 Dividend
YIELDED j

(SaeCobwaBl ndTH)
IVtAmOxka
(WOAimBCl ratnv.

A-H^EDorba
T -J 5027 } I - 1100,000
J-JiLDOOcrl—

n -o.*u»t - iwuxu
PJ -S 2 L 0 CO 4 »l - i«,or»

QTiApfniaa)

U-BoiViH.

D-J!^D1 -tUOD

c-iHxywi -Sijxx&x

t-usm-mflCB

0 -tMQ.OOI-SIDaum

HIHJ.0WD0I-WJWID00
L- 1502 WI -I 1 WW 3

pi - tf&ojxo

P«-Mer»Qua IWJBODCD

D-tldOOl -SIS^JOO
HI "Mm Omm II. 0000*0
M - 1103 ^ 01 -I 1 JO/BO

211

FINANCIAL DISCLOSURE REPORT

Nune ef Pmo* Raperdag

Dale of Report

Page 13 of 17

Jackson, Richard EL

09/29/20! a

VIL INVESTMENTS and TRUSTS Asa if aaJ depemloil ddldrt*: tee pp. JWI in*»ab«a.)

| 1 NONE (Ho reportable income, assets, or transactions.)

154. -AIM STTT TREASURY PORTFOLIO

A

tolarxl

T

155- -DREYFUS BOND MKT INDEX BASIC
CL

A

Dividend

156. -DREYFUS BASIC S & P 500

A

Dividend

■

■

J57. -1SHARES MSC1 EAFB INDEX FD

A

Dividend

158. -(SHARES MSd EMESOINO MKTS IN
DEXFD

A

Dividend

■

■

159. BROKERAGE ACCOUNT M

160. DREYFUS LARGE FUND GROWTH F
UND CLASS 1

*

Dividend

K

T

161. BROKERAGE ACCOUNT #4

162. AMERICAN STRATEGIC INCOME P
ORTFOUO

C

Dividend

K

T

163. CTT GROUP INC NEW

None

J

T

164. G ABELL! DIVIDEND & INCOME TRUST

A

Dividend

J

T

165. AIM INVESTMENT SECS FUNDS JNVF.
SCO

C

Dividend

K

T

166. AIM INVE5TM SECS INVESTCO VAN
KAMP

B

Dividend

K

T

167. WELLS FARGO FDSTRSPECITECHN

None

J

T

168. CTT GROUPING NEW NOTE VI 3

A

Dividend

J

T

169. CIT GROUP INC NEW 5/14

A

Dividend

J

T

170. CIT GROUP INC NEW 5/15

A

Dividend

J

T

l.luaauGMoCafar
(SttfWffinn.DI.dtM)
LVah»Oafci
(SaaCcSwoCt ®dQ3)

1 Vais MrOcd CaSa

(Son OokmaCZ)

A -11.600 aka
F -LMlOO! - UW»6
J-SiS.OfDa'W
N -J2W.E01 -I3O0.AJ0

n — SUJ*O.QOi - UO/OORODO

Q«App~*M

U — (loot v,hjc

13JM

0-3100001

11.000,000

l*Cta»(RcaJEar*fcfVfj)
V-O Oar

c-*3jei .iifioo
Hi 'jrjmwi . ufioascc

L -UD.OO] - itaxow

Fi-jipoe^o] -«^«aoqo
N-M nAomUHUm

D -svno: . in, on
HJ -Mardn umuo

M -3100,00] - EWOOO

m-jmoqjooi

T-OofcMotd

E-tIVOOJ -B4DC0

212

VII. INVESTMENTS and TRUSTS

| | NONE (No reportable income, assets, or transactions.)

a pp. i4-6* of fl&tg btarmakm)

Deacripcon of Kom
(inc! tiding mul aiacti)

Place *(X)* after each asset
exempt fiten prior diacVnuae

Iocc*ne daring

reporting period

(«) W

Amnwnl Trpefe*,
J dfr- roil,

(A*H) o, inj.)

Oran value al end of
reporting period
___

Value Vain;

Code! Me«W

(J-P) Code 3

{Q.W)

Tramaetioo* during reperung period

(»>

CT

0)

«)

(5)

Typo(t^,

Data

Vah*

ruin

ftfcority of

toy.aell.

Moot*-

Code2

Cutat

boyer/ieJlcr

RdeajiMo)

D*y

<LP)

(A-H)

(ifprhale

Danaaelicn)

171. CTT GROUP INC NEW 5/16

172. CIT GROUP INC NEW 5/17

173, GENERAL ELEC CAPITAL CORP MID
TERM NOTE

174. WELLS FARGO BANK (VARIOUS A
CCOUNTS)

175. TRUST #1

176. -SPUR TRUST SERIES!

177. -SPDR DOW JONES INDUSTRIAL AVE
RAGE

178. -ISHARES MSC1 EAFE INDEX FD

179. -ISHARES MSCI EMERGING MARKETS
INDEX FUND

180. -VANGUARD EXTENDED MARKET V
IPERS INDEX FUND

181. -BNY MELLON NATIONAL INTERMED
ATE MUNICIPAL BD FD

182. -BNY MELLON NATL MUNI MONEY
MXTFD

183. -UNITED STATES TREASURY BILL 3/1 1

(2011

184. -BROOKFIELD L OCAL SCH 3/25% 1/15

/to

185. -DIAMONDS TR. 7/13/09

186. TRUST tf2

187. -SPDR TRUST SERIES 1

(SaCblnaBI nd CM)
7. YalM Cede*
(beCMmiCIwim)

J.VlIia Mariral Coda
(Soo Column Cl)

i-tlKDabi
r-J5a«i -ticpooo

J-SIVWOcrtaa
W - J5WJM0

n - uopoopco

Q n*I^Tl 1 nl

U-Oo(*Vah«

B-JI^0l-ELW0

C -1)0X001 -*1X00,000

£-1)1.001 -SW3Q0
0 -150000! -JI JSBJXB

C-EJOI- 15,000

H1 1 1.OOD VO 1 - SXDM.QW

L-45nj3B!-iita,ce©

W - U-tmywi

N -MOV An INWiaunO

D~wffli-tt5,noo

IU -Mat Liu U.000,000
M-lliaCOt -t3SU»0
P2-15 .BOOjOD! - ui^ooora

213

FINANCIAL DISCLOSURE REPORT

Num tfPfOH Bcperdag

Dale oIlbptTl

Page 15 of 37

JickioG' Richard ft.

09/29/2010

VIL INVESTMENTS 8Dd TRUSTS - U.i — vain. 6Mwaiwi *f ipemu l ep t fUmt ckiUrr*; **pf\ 34-4taf/WMi imztrwtiioiaj

| | NONE (No reportable Income, assets, or transactions.)

18B. -SPUR DOW JONES INDUSTRIAL AVE
RAOBEFF TRUST

189. -ISHARES MSCI EAFE INDEX FD

190. -ISHARES MSCI EMERGING MKTS IN
DEXEUMD

■

■

191. -VANGUARD EXTENDED MARKET V
IPERS INDEX FUND

■

192. -COLORADO ST BRD GOVERNORS UN
V ENTERPRISE BVS REV DTD 3/13

193, -BOULDER CNTY CO SAIFS USE TAX
2/1)

194. -BNY MELLON NATL INTERMED M
UNI PAL BOND FUND CL M

—

J95. -UNITED STATES TREASURY NOTE 3
/U

196. -UNITED STATES TREASURY NOTE 7
/12

197. -BNY MELLON NATL MUNI MONEY
MKT FD M

I9B- -UNITED STATES TREASURY BILL 6/10

199. -COLD SPOS CO 5.0% BOND 12/9

■

200. -REGIONAL TRAN9N D1S 4.0% 1 1/9

■

201. -DIAMONDS TR

202.

I Iuixk Ggq OAv;

A-*)j»0»fc«»

B -51,061 -»>»

c-n^oi ->51)00

□ -55,00) . t'liJMI

B -5ISOM - ixvxn

(SwCehroa BlaaJIX)

P-W00I - IKCiXC

G *1100,001 - ll^CODOO

in -11,000001 -55^01000

H2 -Mm Hob ilOOO/W

LViteCmt*

J-ilS/UOcrlcM

A-515.00>

L-tJOOOi -I10O.XD

M -5(00.001 - D5CUXH

(SoeCohBMCl

H -5150,00 S -1S0OJX0

pi -mxwyjot -ud.ooodoo

O <500101 - j; iCR.CH)

FI ->1,00 0D0) - W»\««
N»Moa«h-iliCWnU«3

Pl-WOOO/JOt .0*000000

3. YUm o*W

fSo! OtamnCl)

QnAfpiaiul

U-Bo*V»A>t

iEjaaOnW

W-fMiMHl

T-OitMaU

214

FINANCIAL DISCLOSURE REPORT

Name at faaa (UportiaK

Date of Bipert

Page 1 6 of 1 7

Jackson, Richard B.

09/29/2010

Vin. ADDITIONAL INFORMATION OR EXPLANATIONS. (InltealM r*rr oflUpttt)

FINANCIAL DISCLOSURE REPORT

Kant of PtrviQ Rrportf &g

Date of Report

Page 17 of 17

Jackson, Richard B.

09129/2010

IX. CERTIFICATION.

I certify thal all Inform* boo givea abcr* (Including IfiformWloD pertaining u> ray apoaie and minor or dependent children, If any) l»
occur»{B t hue, and eotnpfcle ta tic Ik* 1 tjf my kwwledge uid Wkt, and that any fa&muttoo not repotted nu withheld became U met applicable rtalalory
provbloni permiitktg D(»-41fcJo«nrc.

I further cert If)- (Jut omied taco rat from ootdLde employment and Wonrh and (J»e acceptance of glfa which have been reported ore in
compliance with the provtaloo* of 5 U-S.C. app. 8 501 et oeq, 5 US. C § 7353, and Judicial Coafenmce regnUdoaa.

NOTT: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE SUBJECT TO CIVIL

AND CRIMINAL SANCTIONS (SU&C. app. 5 1W)

215

Richard Jackson

FINANCIAL STATEMENT
NET WORTH

Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank accounts,
real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans,
and other financial obligations) of yourself, your spouse, and other immediate members of your household.

ASSETS

LIABILITIES

Cash on hand and in banks

Notes payable to banks-sccured

U.S. Government securities — see schedule

Notes payable to banks-unsecured

Listed securities — see schedule

Notes payable to relatives

Unlisted securities

Notes payable to others

Accounts and notes receivable:

Accounts and bills due

Due from relatives and friends

Unpaid income tax

Other unpaid income and interest

Real estate mortgages payable
— primary residence

Real estate owned — primary residence

000

Chattel mortgages and other liens payable

Real estate mortgages receivable

Other debts-itemize:

Autos and other personal property

Cash value-life insurance

Other assets itemize:

146

334

Total liabilities and net worth

290

CONTINGENT LIABILITIES

GENERAL INFORMATION

As endorser, comaker or guarantor

— child’s home loan

Arc any assets pledged? (Add schedule)

NO

| On leases or contracts

Are you a defendant in any suits or legal
actions?

Legal Claims

Have you ever taken bankruptcy?

Provision for Federal Income Tax

Other special debt

216

FINANCIAL STATEMENT

NET WORTH SCHEDULES

U.S. Government Securities

U.S. Treasury Notes

U.S. Treasury Inflation Indexed Bond

Total U.S. Government Securities

Listed Securities
Account #/

VANGUARD VALUE VIPERS

VANGUARD FTSE ALL WORLD EX US

VANGUARD EXTENDED MARKET VIPERS

VANGUARD GROWTH VIPERS

BNY MELLON NATIONAL INTERMED MUN BOND

BNY MELLON MUNICIPAL OPPORTUN FUND

CRA BNY MELLON

ACCRUED INCOME

Account #2

SPDR TRUST V SERIES 1
SPDR DOW JONES INDUSTRIAL AVERAGE
ISHARES MSCI EAFE INDEX FD
ISHARES TR S&PMIDCAP400 INDEX
ISHARES RUSSELL 1000 INDEX FD
ISHARES TR S&PSMALLCAP 600
VANGUARD EMERGING MARKETS ETF
FEDERAL HM LN MTGE CORP
FEDERAL HOME LOAN BANK
FEDERAL NATL MTG ASSN
FEDERAL HOME LN MTG CORP
FEDERAL HOME LOAN BANKS
AETNA INC

WELLS FARGO COMPANY
PFIZER INC

GOLDMAN SACHS GROUP INC
GENERAL ELEC CAP CORP
AT&T INC

ISHARES S&P GSCI COMMODITY
THE AIM STIT TREASURY PORTFOLIO
ACCRUED INCOME
Account

PIMCO TOTAL RETURN FUND
DODGE AND COX BALANCED FUND
DODGE AND COX STOCK FUND
FIDELITY CONTRAFUND
RAINIER LG CAP GROWTH EQUITY
AMERICAN FUNDS EUROPACIFIC GR
Account #4
CHEVRON CORP
EXXON MOBIL CORP
AIR PRODUCTS & CHEMICALS
EMERSON ELECTRIC
GENERAL ELECTRIC CO

290,405

52,707

343,112

$ 62,455
39,613
31,392
64,006
47,75!
10,331
11,514
350

227,996

231,462

159,808

109,744

146,488

51.919

59,568

50,250

103,500

54,438

52,380

58.094

25,955

26,886

27,535

26,810

27,615

28,857

15,835

82,791

8,315

46,388

34.300
10,413
12,538

9,758

12,98!

40.300
85,710
22,209
16,56!
8,688

217

UNION PACCORP 16 412

UNITED TECHNOLOGIES CORP 1 9563

THE WALT DISNEY COMPANY 8 623

JOHNSON CTLS INC 5 969

STARBUCKS CORP I0L112

NESTLE S A SPONSORED ADR REPSTG REG 39 951

PEPSICO INC 25*672

THE PROCTER & GAMBLE CO 46*84 1

ABBOTT LABORATORIES 8^635

JOHNSON & JOHNSON 3R914

PFIZER INC 9 069

TEVA PHARMACEUTICAL INDS LTD ADR 8*859

THERMO FISHER SCIENTIFIC INC R477

INVESCO LIMITED 8^ 1 7

ACE LTD 16,041

JP MORGAN CHASE & CO 12,726

MORGAN STANLEY 6* 1 73

STATE STREET CORP 7^542

US BANCORP 7*592

WELLS FARGO & COMPANY I4J30

ACCENTURE PLC 14*640

APPLE INC 15,802

CISCO SYSTEMS INC 1 3,990

GOOGLE INC 9 000

HEWLETT PACKARD CO 9^997

INTEL CORP 14 132

MASTERCARD INC 8^926

MICROSOFT CORPORATION 10*442

SEMPRA ENERGY 10*184

ISHARES MSCI EAFE INDEX FD ) 08’ 1 20

ISHARES MSCI EMERGING MARKETS INDEX 38,858

VANGUARD EXTENDED MARKET VIPERS 86,701

DENVER CO CITY & CNTY SCH DISTR 50 3 1 8

CASTLE PINES NORTH MET DIST COLO 80 672

THORNTON CO DTD 57 227

RANGELY CO SCH DIST RE 4 56*974

SNOWMASS VIG CO 57*508

FLORIDA HSG FIN CORP REV 35250

UNIVERSITY COLO ENTERPRISE SYST REV 51*749

METROPOLITAN TRANSN AUTH NY 54*315

METRO W ASTEWTR RECLMATION DIS COLO 54*2 1 2

EL PASO CNTY COLOR REV 56*372

BNY MELLON MUN1PICAL OPPORTUNITIES FD 25^829

BNY MELLON NATL MUNI MONEY MKT FD M 174 292

ACCRUED INCOME 6,971

Account ft5

DREYFUS PR LRGE CAP EQ 55,256

VANGUARD FTSE ALL WORLD EX US 1 5*394

VANGUARD EXTENDED MARKET VIPERS 12D86

BNY MELLON INTERMEDIATE BOND FUND CL M 47,078

DREYFUS PREMIER LTD TERM HIGH YIELD FUND 4,492

THE AIM STIT TREASURY PORTFOLIO 9,97 1

ACCRUED INCOME ’ 12

Account tiA

DREYFUS LARGE CAP GROWTH FUND CLASS I 22,027

2

218

Account U7

AMERICAN STRATEGIC PORTFOLIO INCOME INC 15 600

CIT GROUP INC NEW 4 ' 47s

GABELL! INCOME AND DIVIDEND TRUST 1 0927

VAN KAMPEN CORP BOND FUND 24 690

VAN KAMPEN HIGH YIELD FUND CLASS A 20 389

WELLS FARGO FUNDS SPECIALIZED TECH 12 807

CIT GROUP NEW RED NOTE SER A 1 407

CIT GROUP NEW SECURED NOTE SERA 2072

CIT GROUP NEW SECURED NOTE SER A 2 046

CIT GROUP NEW SECURED NOTE SER A 3 371

CIT GROUP NEW SECURED NOTE SER A 4 'g7 1

GENERAL ELECTRIC CAPITAL MED. TERM NOTE 5 006

ACCRUED INTEREST ’ 2

Total Listed Securities $ 3,932,982

AFFIDAVIT

, do swear
, to the best

of my knowledge, true and accurate.

I > K t ct\«.r J .Tac.fc.goA

that the information provided in this statement i;

3

219

January 5,2011

Hon. Patrick J. Leahy
Chairman, Committee on the Judiciary
United States Senate
Washington DC 205 1 0

Dear Mr. Chairman:

I have reviewed the Questionnaire for Judicial Nominees and supplemental materials
dated October 1, 2010 that were filed with the Senate Judiciary Committee following my
nomination for the United States District Court for the District of Colorado. With the following
exceptions, I certify that the information contained in my prior submissions is, to the best of my
knowledge, true and accurate:

Question 12(d):

Panelist, Winning Trial Tactics and Skills, section on “Rapport with Judge and Jury,”
sponsored by Colorado Bar Association and American College of Trial Lawyers,
November 1 2, 20 1 0. My only written material was a copy of my article, “Joe DiMaggio
and You,” 37 The Colorado Lawyer 65 (April 2008)(copy previously supplied).

Question 13(f) (Court of Appeals opinions):

People v. Jones, No, 07CA1984 (Slip. Op. December 2, 2010)(affirming judgment of
conviction and sentence to life in prison without parole, one victim, but remanding for
resentencing on a separate conviction of attempted first degree murder, different
victim)(copy enclosed)

I am also forwarding an updated Net Worth Statement and Financial Disclosure Report as
requested in the Questionnaire. I thank the Committee for its consideration of my nomination.

Richard Brooke Jackson

CC: Hon. Charles Grassley

220

07CA1984 Peo v. Jones 12-02-2010
COLORADO COURT OF APPEALS

Court of Appeals No. 07CA1984

Jefferson County District Court No. 05CR4231

Honorable R. Brooke Jackson, Judge

The People of the State of Colorado,
Plaintiff-Appellee,

Kenji Myricks Jones,
Defendant-Appellant.

JUDGMENTS AFFIRMED, SENTENCE VACATED,
AND CASE REMANDED WITH DIRECTIONS

Division III

Opinion by JUDGE DAILEY
J. Jones and Lichtenstein, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(f)

Announced December 2, 2010

John W. Suthers, Attorney General, John T. Lee, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Law Offices of Jonathan S. Willett, Jonathan S. Willett, Denver, Colorado, for
Defendant-Appellant

221

Defendant, Kenji Myricks Jones, appeals the judgments of
conviction entered on jury verdicts finding him guilty of first degree
murder, attempted first degree murder, two counts of aggravated
robbeiy, three counts of possession of a controlled substance, and
possession of more than eight ounces of marijuana. We affirm the
judgments of conviction, vacate defendant’s sentence for attempted
murder, and remand for resentencing on that conviction.

I. Background

Defendant was charged as a result of an incident in which he
and two other men allegedly used guns to forcibly enter the Arvada
home of two of their long-time friends, one of whom was a drug
dealer. Inside the home, the three men stole drugs (including
ecstasy, mushrooms, cocaine, and marijuana), money, and other
valuables from the occupants, taunted and terrorized them with a
knife, and, ultimately, shot them both in the head. The female
occupant died; the male survived and testified at trial.

In addition to the male victim’s testimony, the prosecution also
presented evidence that (1) defendant and the two other men were
seen together talking, in a secretive manner, at a bar a few hours

1

222

before the robbery; (2) defendant owned a gun; (3) after the robbery,
defendant stored white plastic bags filled with drugs at a coworker’s
home; (4) defendant tested positive for gunshot residue when he
was arrested a day after the incident; and (5) latex gloves found in a
trash can in defendant’s front yard had both his and the female
victim’s DNA on them.

In his defense, defendant asserted that (1) the surviving victim
identified him and the other two men as perpetrators of the incident
to divert attention away from the fact that he (the surviving victim)
shot the female victim in an act of domestic violence; (2) defendant
was inebriated when he left the bar that evening (and thus,
presumably, did not have sufficient mental or physical ability to
assist in the episode); (3) gunshot residue is easily transferable; and
(4) the DNA found on the gloves was from a time, three days before
the incident, when defendant was with both victims.

The jury convicted defendant of the numerous charges against
him, and the trial court sentenced him to an aggregate term of fife
imprisonment without the possibility of parole, plus eighty years.

2

223

II. Substitution of Counsel

Defendant contends that the trial court abused its discretion
when it failed to appoint substitute counsel, despite an apparent
breakdown in communications between himself and his attorney.
We disagree.

A. Facts

Four months before a date scheduled for trial (and
approximately ten months before trial actually commenced),
defendant filed a pro se request for substitute counsel and had his
attorney file a motion to withdraw from the case. In the letter
accompanying his pro se motion, defendant alleged, as grounds for
a change in counsel, that

• his attorney had made a comment which, in defendant’s view,

reflected a lack of belief in his cause and raised, in defendant’s

/

mind, the question as to whether the attorney would or could
provide proper representation on his behalf;

• his attorney had become upset when defendant expressed his
desire to have him dismissed and again when defendant asked
“why [he] had not received a copy of discovery”;

3

224

• he was unable to contact his attorney because (1) the attorney
would not accept collect calls, and (2) the attorney’s
suggestion that he communicate with him through defendant’s
mother was impractical, given his mother’s limited financial
ability to receive collect calls and her difficulty, due to
advanced age, in repeating important questions or answers;
and

• in the previous five months, he had only seen or spoken to his
attorney “a total of three times other than in court, . . . and
that was only for a minute or two.”

Correspondingly, at defendant’s request, his attorney filed a
motion to withdraw, in which he asserted that “the attorney-client
relationship has deteriorated to the point that counsel can no
longer meaningfully represent the defendant,” because of
“numerous and protracted disagreements . . . regarding strategy
and litigation in this case.”

Within days of the filing of these motions, the trial court -
through a different judge - conducted a hearing at which defendant,
given the opportunity to elaborate on his complaints, said only, “I

4

225

haven’t received discovery[,] . . . basically I’m left in the dark[,] . . .
[and] I feel like he’s not going to represent me or fight for me.” In
response to defendant’s comments and what appeared to the court
to be a normal “communication issue,” the attorney

• confirmed that he would “[absolutely” work on finding a
workable way of communicating with defendant;

• stated that defendant had, while in jail, viewed on DVD most
of the discovery, until he said “he didn’t want to see any
more”;

• acknowledged that there was a time in which he had not
communicated with defendant, but explained that during that
time he was attempting to negotiate a plea, which depended,
in part, on input from another prosecutor’s office, input which
was not forthcoming for months: “In that time I really had
nothing to talk about with [defendant] because we were
awaiting . . . input” from the other prosecutor’s office; and,

• opined that defendant’s disappointment with him stemmed
from the “harsh” plea offer that was ultimately made in the
case, and that he feared he and defendant would not have a

5

226

productive working relationship in the future because of
defendant’s deterioration of trust in him.

Based on what it had heard, the court denied the motions for
withdrawal and substitution for counsel, finding that (1) there was
no animosity between defendant and his attorney; (2) “there’s no
indication of any ethical problem” between defendant and his
attorney, (3) “there is no indication . . . that [the attorney) is not
going to be able to provide effective assistance of counsel,” and (4)
the extent of any future communication, or whether there would be
a breakdown in communication, “was solely within the province of
[defendant) to determine.”

Approximately seven weeks later, defendant’s attorney filed a
second motion to withdraw from the case, repeating the contents of
his earlier motion, but adding that, because of his disagreements
with defendant, “it has become impossible for counsel to effectively
represent” defendant and “there has been a complete breakdown in
communications” between them.

The trial court - again acting through the different judge -
conducted a hearing on the motion. At the hearing, defendant said

6

227

that he had filed a grievance against his attorney with the supreme
court. When asked by the trial court whether it was “because of
lack of contact or lack of ability,” defendant responded, “I’m not
happy with his performance. I don’t think he’s representing me the
way he should.” Later, he affirmed, as “correct,” the court’s
understanding that he had “issues communicating and [he] did not
like the course that [his] case was taking with [his] current
attorney.” After the court warned defendant that it would not
change counsel based on defendant’s refusal to talk to or cooperate
with his attorney, defendant stated that he was “not happy with the
representation” because, unlike his codefendants, he did not have
an investigator assigned to his case. He indicated that he had
talked with his attorney, but only for a few minutes, two or three
weeks earlier.

In response to defendant’s comments, his attorney said that

• he had hired an experienced investigator, who had indeed met
with defendant;

• a co-counsel had been appointed in the case;

7

228

• defendant had sent him a letter asking him to not visit
defendant anymore; and,

• the problem, as he saw it, was that defendant had interpreted
counsel’s request for defendant’s input as an indication that
counsel did not know what he was doing.

During the course of the hearing, the court determined that
(1) there was not an ethical issue other than that defendant "was
unhappy about the communication and with what he perceives as
being [the] planned defense in the case” and (2) this was insufficient
justification for requiring a substitution of counsel. Defendant
agreed that he would meet and cooperate with his lawyers and
investigator.

Defendant made no further complaint about his attorneys for
the remainder of time leading up to trial, that is, for eight months.

B. General Principles and Standard of Review
“An attorney’s motion to withdraw, as well as a defendant’s
motion to discharge an attorney, are matters addressed to the
sound discretion of the trial court, whose ruling will not be
disturbed on review absent a clear abuse of discretion.” People v.

8

229

Hodges , 134 P.3d 419, 425 (Colo. App. 2005), affd, 158 P.3d
922 (Colo. 2007).

“[I)f the trial court has a reasonable basis for concluding that
the attorney-client relationship has not deteriorated to the point at
which counsel is unable to give effective assistance in the
presentation of a defense, then the court is justified in refusing to
appoint new counsel.” People v. Rocha, 872 P.2d 1285, 1289 (Colo.
App. 1993).

When a defendant objects to court-appointed counsel, the trial
court must inquire into the reasons for the dissatisfaction. People
v. Kelling, 151 P.3d 650, 653 (Colo. App. 2006). An indigent;
defendant is not, however, entitled to new counsel absent a showing
of good cause therefor, such as a conflict of interest, a complete
breakdown in communication, or an irreconcilable conflict with
appointed counsel that may lead to an apparently unjust verdict.

Id.

Disagreements about matters of trial preparation, strategy,
and tactics do not establish good cause for substitution of counsel.
Id. Similarly, “[t]he mere loss of confidence in his appointed

9

230

counsel does not establish ‘good cause’”; the “(defendant must have
some well founded reason for believing that the appointed attorney
cannot or will not competently represent him.” 3 Wayne R. LaFave,
Jerold H. Israel, Nancy J. King fis Orin S. Kerr, Criminal Procedure §
11.4(b), at 703-04 (3d ed. 2007).

C. Analysis

Initially, we observe that, during the course of the two
hearings, the court gave defendant ample opportunity to state the
grounds of his dissatisfaction with his lawyer.

Next, we reject defendant’s assertion that the trial court
misunderstood or misapplied the applicable legal standard for
determining whether appointment of new counsel was warranted.
Although, at different times, the court said that there was no ethical
reason to require substitution of counsel, 1 it did not confine its
analysis to that factor alone. Instead, during both hearings, the

1 We note, in this regard, that the fact that defendant filed a
grievance with the supreme court did not require disqualification of
his trial counsel. See People v. Martinez, 722 P.2d 445, 446 (Colo.
App. 1986) (“The mere filing of a grievance because of disagreement
as to trial tactics does not, without more, demonstrate that the
relationship has deteriorated to a point at which counsel is unable
to give effective aid to the client.”).

10

231

court recognized that there appeared to be some type of
communication problem, just not of a type or degree that would
warrant appointment of new counsel.

To warrant discharge of original counsel and appointment of a

new one, defendant had the burden of showing a “complete

breakdown in communications.”; Kelling, 151 P.3d at 653. In

United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002), the

Tenth Circuit Court of Appeals noted:

The types of communication breakdowns that
constitute “total breakdowns” defy easy
definition, and to our knowledge no court or
commentator has put forth a precise
definition. As a general matter, however, we
believe that to prove a total breakdown in
communication, a defendant must put forth
evidence of a severe and pervasive conflict with
his attorney or evidence that he had such
minimal contact with the attorney that
meaningful communication was not possible.

See also Kelling, 151 P.3d at 656 (the defendant’s burden was to

show “a completely fractured relationship with appointed counsel

because of ... a total breakdown in communication”).

Whether a defendant has substantially and unreasonably
contributed to the underlying conflict with his attorney, or to a

11

232

breakdown in communications between them, has been identified
as a factor in assessing whether new counsel should be appointed.
See People v. Bergerud , 223 P.3d 686, 695, 705 (Colo. 2010) (citing
Lott, 310 F.3d at 1250-51).

Here, the record does not reveal an attorney-client relationship
shorn by such a severe and pervasive conflict or by such minimal
contact that meaningful communication was not possible. Instead,
it reveals that (1) defendant’s disagreements with his counsel
centered on counsel’s inability to obtain a better plea offer and
other strategic matters; (2) counsel had provided defendant access
to discovery; (3) there was a period of time in which counsel had not
contacted defendant because there was nothing new to talk about;
(4) counsel was willing to find more workable ways of
communicating with defendant; and (5) though defendant had, at
times, refused or resisted efforts to be contacted by counsel or his
assistants, he ultimately agreed to meet and cooperate with his
attorneys and investigators.

From these facts, and the fact that defendant made no further
complaint about his attorney in the eight months leading up to

12

233

trial, we perceive no abuse of the court’s discretion from its denial
of the motions for withdrawal and substitution of counsel. Cf.

People v. Thornton, P.3d , (Colo. App. No. 08CA1027,

Sept. 30, 2010) (no complete breakdown in communication where,
although trial counsel acknowledged that “there have been a lot of
communication breakdowns,” he maintained that he was
continuing to represent the defendant's interests and “had a
number of visits with* the defendant); People v. Gonyea, 195 P.3d
1171, 1173 (Colo. App. 2008) (no abuse of discretion in declining to
dismiss counsel where the defendant’s own actions had contributed
to the problems between them and, because the defendant and his
attorney agreed to resolve their differences and cooperate, there was
no breakdown of communication); Hodges, 134 P.3d at 425-26
(attorney’s statement that he was “concerned that we’re not truly
communicating" did not require a finding of a complete breakdown
of communication); People v. Jenkins, 83 P.3d 1122, 1126 (Colo.
App. 2003) (the defendant’s allegations that counsel was not
defending him zealously, had not spent adequate time with him,
had met with him only once in nine months, had not discussed

13

234

potential witnesses, and had not given him copies of discovery did
not show a complete breakdown of communication).

ID. Relieving the Prosecution of Its Burden of its Proof
Next, defendant contends that reversed is required because,
during jury voir dire, the trial court made a statement that relieved
the prosecution from its burden of proving that a murder and an
assault occurred. Again, we disagree.

A. Facts

At defendant’s request, the court, during voir dire, told the

prospective jurors of the names of the other two suspects to ensure

that no one knew them. One prospective juror indicated she had

heard about them or the incident, and that it involved “murder or

shootings.” Subsequently, another prospective juror said that she

may have trouble being fair and impartial knowing that there was a

murder involved. In response, the court said:

There was a person shot to death. That’s not
going to be disputed. There was a person shot
and wounded. That won’t be disputed either.

The dispute concerns whether [defendant] was
involved. And if he was involved in any part of
the incident, whether he is guilty of what he is
charged with. None of us have to think
murder is a good idea. Of course not. It’s not.

14

235

Murder is the most serious level of felony
crime that we have in our system. But the
issue here is whether or not [defendant] is
guilty. Regardless of what [the other gunmen]
did or didn’t do, regardless of whether they’ve
been tried and convicted or not, the issue in
this case is what, if any, participation did
[defendant] have? And more specifically,
beyond a reasonable doubt, did he do what
he’s accused of doing? That’s it.

Defendant subsequently moved for a mistrial on the grounds

that the court had wrongfully relieved the prosecution of its burden

of proof by stating that there was no dispute as to whether a

murder occurred. The court denied the motion, noting that it

thought it only said “there’s no dispute there was a shooting.” The

court indicated that it would consider any curative instruction

proposed by defendant. Although defendant never tendered a

curative instruction, the court gave one sua sponte.

B. General Legal Principles & Analysis

The prosecution must prove every element of a charged crime

beyond a reasonable doubt. People v. Dunaway, 88 P.3d 619,

627 (Colo. 2004). As a result, a trial court errs when it instructs a

jury that, as a matter of law, the prosecution has satisfied its

burden of proving one of the elements, thereby withdrawing that

15

236

element from the jury's consideration. People v. Gracey, 940 P.2d
1050, 1053 (Colo. App. 1996).

Here, we perceive nothing improper about the court’s remarks.
Contrary to defendant’s assertion, the trial court did not tell the
jury that “a murder and assault occurred.” Indeed, the court did
not refer to an assault at all and its only references to murder were
general remarks about its seriousness and that no one had to think
it was a “good idea.”

The only things the court said were undisputed were that one
person was shot to death, while another person was shot and
wounded. The court was correct, and its recitation of those facts
did not, in any way, indicate that a murder - or an assault - had in
fact been committed.

Moreover, the court, on its own accord, informed the jury,

after defendant’s motion for mistrial:

I think it’s not disputed that one person was
killed and one person was injured . . . it’s
disputed for what role, if any, the defendant
had in any of it. But if 1 said that it’s
undisputed that a murder took place, murder
really is a technical term. And the People have
to prove that a murder took place, as well as . .

. if this defendant had any role in it ... I think

16

237

it’s just undisputed that there was an incident
where someone was killed and someone was
injured, and the rest of it has to be proven.

In our view, this instruction sufficed to alleviate any potential
prejudice occasioned by the court’s earlier remark. See People v.
Mersman, 148 P.3d 199, 203 (Colo. App. 2006) (generally, curative
instructions will remedy any harm caused by a prejudicial
statement); People v. McNeely, 68 P.3d 540, 542 (Colo. App. 2002)
(curative instruction “inadequate only when evidence is so
prejudicial that, but for its exposure, the jury might not have found
the defendant guilty”) (quoting People v. Gillispie, 767 P.2d 778, 780
(Colo. App. 1988)); cf. Edmisten v. People, 176 Colo. 262, 276, 490
P.2d 58, 65 (1971) (“error in admitting evidence may be cured by
instructing the jury to disregard it unless such evidence is so
prejudicial that the jury will unlikely be able to erase it from their
minds”).

Also, the court instructed the jurors regarding the
presumption of innocence and the burden of proof, and, absent
evidence to the contrary, we presume they followed those

17

238

instructions. See, e.g.. People v. McKeel, P.3d , (Colo. No.

10SA164, Oct. 18, 2010). 2

IV. Hearsay & Confrontation

We are also unpersuaded by defendant’s contention that
reversal is required because the trial court erroneously admitted
several hearsay statements in violation of his constitutional right to
confront adverse witnesses.

A. Facts

During trial, the following evidence was admitted:

2 Defendant appears to argue that the prejudice from the court’s
comment was heightened or revealed when (1) the court, ostensibly
in response to his motion for mistrial, admitted evidence of another
codefendant’s subsequent purchase of a gun, and (2) the jury
inquired, during deliberations, about the applicability of a
complicity instruction to the charges. We have, however, already
determined that the court’s comments were not prejudicial. And
because, by defendant’s own admission, “the motion for mistrial
has no bearing on the admissibility of evidence,” and because
defendant did not raise the evidentiary or jury inquiry issues as
separate claims of error, or support them with either authority or
developed argument, we decline to address those issues. See People
v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007) (declining to address
arguments presented in a perfunctory or conclusoiy manner); see
also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“A
skeletal ‘argument,’ really nothing more than an assertion, does not
preserve a claim [for appellate review].”).

18

239

• a police officer recounted what the surviving male victim told
him on the way to the hospital about the incident;

• the male victim testified that, during the robbery, the female
victim asked defendant, “How can you do this? You’re like my
brother,” to which defendant responded, "It is what it is”;

• a detective testified that the male victim had told him at the
police station that he was concerned that the men responsible
for the robbery and shootings “were going to kill his family”;
and,

• the same detective testified that, when asked at the station
whether he shot the female victim in a domestic dispute and
then shot himself to make it look like a murder-suicide, the
male victim said, “That did not happen.”

Defendant objected to the first two statements as hearsay and
to the last two statements on both hearsay and confrontation
grounds. The trial court ruled that the first statement was
admissible as an excited utterance and that the second statement
was admissible because it was not offered for the truth of the
matter asserted (and, thus, was not hearsay). The court overruled

19

240

defendant’s objections to the last two statements without making
any additional findings.

B. General Legal Principles and Standard of Review

Hearsay is defined as “a statement other than one made by the
declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.” CRE 801(c); see People v.
Huckleberry, 768 P.2d 1235, 1241 (Colo. 1989). Hearsay is
inadmissible, unless it falls within an exception to the rule against
hearsay. CRE 802.

An out-of-court statement offered, not for the truth of the
matter it asserts, but solely to show its effect on the listener, is not
hearsay. People v. Rodriguez, 888 P.2d 278, 287 (Colo. App. 1994).

The admission of hearsay evidence may implicate a
defendant’s confrontation rights under the federal and state
constitutions. See Davis v. Washington, 547 U.S. 813, 823, 126
S.Ct. 2266, 2274, 165 L.Ed.2d 224 (2006) (admission of
“testimonial" hearsay violates federal confrontation rights); Compan
v. People, 121 P.3d 876, 882-86 (Colo. 2005) (admission of
nontestimonial hearsay as violative of state confrontation rights).

20

241

However, the admission of nonhearsay does not implicate a
defendant’s confrontation rights. Crawford v. Washington, 541 U.S.
36, 59 n.9, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004) (“The
[Confrontation] Clause . . . does not bar the use of testimonial
statements for purposes other than establishing the truth of the
matter asserted.”); People v. Isom, 140 P.3d 100, 103 (Colo. App.
2005) (no right of confrontation or hearsay preclusion exists when
statements are not offered for their truth); People v, Bomman, 953
P.2d 952, 956 (Colo. App. 1997) (because the information was not
hearsay, “no issue of confrontation is presented”).

Trial courts have considerable discretion in determining the
admissibility of evidence, and we will not disturb their evidentiary
determinations on appeal absent a showing of an abuse of
discretion. People v. Boykins , 140 P,3d 87, 95 (Colo. App. 2005).

C. Analysis

Initially, we note that, although defendant properly preserved
his hearsay objections in the trial court, he has not properly
presented some of them to us for review. See Roca v. E.I. du Pont de
Nemours & Co., 842 A.2d 1238, 1242 (Del. 2004) (“If an appellant

21

242

fails to comply with [the] requirements [of presenting an argument]
on a particular issue, the appellant has abandoned that issue on
appeal irrespective of how well the issue was preserved at trial.”).

For instance, defendant has provided no argument challenging
the trial court’s determination that the account given by the victim
on the way to a hospital was, if hearsay, admissible as an excited
utterance. Because he has not challenged that part of the trial
court’s ruling, his challenge to the admissibility of the victim’s
account is not properly before us. Cf IBC Denver II, LLC v. City of
Wheat Ridge, 183 P.3d 714, 717 (Colo. App. 2008) (it is incumbent
on the appellant to challenge on appeal all stated reasons or
grounds for the trial court’s decision, and failure to do so requires
affirmance of the trial court’s ruling). 3

With respect to the other statements, defendant does not
attempt to show how they were admitted for the truth of the matter,

3 By its nature, an excited utterance is unlikely to be “testimonial”
hearsay implicating confrontation rights. See People v, King, 121
P.3d 234, 240 (Colo. App. 2005). In any event, the admission of
hearsay from a witness who, like the male victim, testifies at trial
and is subject to cross-examination does not violate a defendant's
right to confrontation. See People v. Argomaniz-Ramirez, 102 P.3d
1015, 1019 (Colo. 2004).

22

243

and, thus, qualified as hearsay. Instead, he equates truth of the
matter asserted with whether the statement was important to the
prosecution’s case or prejudicial to his own.

Because the prosecution was not trying to prove the truth of
the matter asserted in the female victim’s statement (that is, how
could defendant do this, since he and she were indeed like family),
it was not admitted for a hearsay purpose. Indeed, it was admitted
for nonhearsay purposes, that is, for its effect on the listener (here,
defendant), see Rodriguez, 888 P.2d at 287, and for providing
context for his response. 4 See People v. Arnold, 826 P.2d 365, 366
(Colo. App. 1991).

Similarly, although at trial the prosecution proffered the third
statement as an excited utterance, the value of that statement did
not depend on the truthfulness of its content, that is, whether the

4 An out-of-court statement to another person “is not subject to
attack as hearsay when its purpose is to establish the state of mind
thereby induced in [the other], such as receiving notice or having
knowledge or motive, or to show the information which [the other]
had as bearing on the reasonableness, good faith, or voluntariness
of subsequent conduct . . . . ” 2 McCormick, on Evidence § 249, at
134-35 (K Broun 6th ed. 2006). It is not hearsay because the value
of the statement does not depend upon its truth. Id. at 135.

23

244

men who perpetrated the robbery and shootings would, in fact, kill
the surviving victim’s family members. Regardless of its truth, the
statement tended to explain why (i.e., fear) the surviving victim
delayed identifying his assailants. As such, the statement was not
inadmissible as hearsay. See 2 McCormick on Evidence § 249, at
133 (statement is not hearsay when its value does not depend upon
its truth); cf. People v. Mossman , 17 P.3d 165, 168 (Colo. App. 2000)
(trial court should have permitted the testimony of two witnesses
who would have substantiated the defendant’s affirmative defense
that he took his daughter from his ex-wife because he believed she
was being abused while living with his ex-wife and another man). 5

5 Also, the detective had previously related to the jury this veiy
same statement, without objection; and, the victim himself had
testified that he delayed identifying his assailants out of fear for his
family’s safety. The statement to which defendant objected was,
then, cumulative to other evidence admitted in the case. See People
v. Caldwell, 43 P.3d 663, 668-69 (Colo. App. 2001) (holding that
because the statements challenged as inadmissible hearsay were
merely cumulative of other evidence, their admission was harmless
beyond a reasonable doubt); People v. Robinson, 874 P.2d 453,

461 (Colo. App. 1993) (any violation of the defendant's confrontation
clause rights was harmless beyond a reasonable doubt because
hearsay testimony at issue was merely cumulative).

24

245

Finally, although a somewhat closer question, we perceive no
abuse of the court’s discretion in admitting evidence of the male
victim’s out-of-court denial of killing his companion. Just before
the statement was mentioned, the prosecution had elicited evidence
from the detective that “Everybody” - including the male victim -
was a “possible suspect at that point.” Thus, the detective's follow-
up inquiry, and the victim’s answer thereto, can be viewed as
explaining, in part, why the police investigation proceeded as it did
- a nonhearsay purpose. See People v. Robinson, 226 P.3d 1 145,
1152 (Colo. App. 2009).

Because all three of these statements were not inadmissible
hearsay, admitting them necessarily did not violate defendant’s
confrontation rights. Consequently, we perceive no grounds for
reversing defendant’s convictions.

V. Sentencing

We are, however, persuaded by defendant’s contention that his
case must be remanded for resentencing on his conviction for
attempted first degree murder.

25

246

A remand for resentencing is appropriate where a trial court
misapprehends the scope of its discretion: for example, where a
trial court imposes consecutive sentences under the mistaken belief
that it has no discretion to impose concurrent sentences. People v.
O'Connell, 134 P.3d 460, 466 (Colo. App. 2005).

Here, the trial court sentenced defendant to forty-eight years
imprisonment for the attempted murder consecutive to his sentence
to life without parole for the murder. In so doing, the court stated
its belief that the law mandated a consecutive sentence because
attempted first degree murder is a crime of violence. However, in
the absence of a special interrogatory, as here, attempted first
degree murder is not a crime of violence. § 18-1.3-406(6), C.R.S.
2010; People v. Webster, 987 P.2d 836, 843 (Colo. App. 1998).
Therefore, the trial court was mistaken when it twice said that it
was required to impose a consecutive sentence for the attempted
murder conviction.

Accordingly, we vacate that sentence and remand for
resentencing on that conviction alone. Compare O'Connell, 134
P.3d at 466-67 (affirming the defendant’s conviction where trial

26

247

court never indicated that it believed that consecutive sentences
were required and it indicated that it had reviewed and considered
the case law pertaining to consecutive and concurrent sentencing),
withPeople v. Smith, 881 P.2d 385, 390 (Colo. App. 1994) (vacating
and remanding for resentencing three of the defendant’s convictions
because the trial court mistakenly believed that consecutive
sentences were mandated by statute).

In reaching this conclusion, we necessarily reject the
prosecution’s assertion that a remand is unnecessary because “it
appears that the district court would have imposed consecutive
sentences if it believed it had the discretion [] to do so.” Our
reading of the record does not disclose a clear intent one way or the
other on the issue.

The judgments of conviction are affirmed, the sentence on the
attempted murder conviction is vacated, and the matter is
remanded for resentencing.

JUDGE J. JONES and JUDGE LICHTENSTEIN concur.

27

248

AO 30

Rev. mm

FINANCIAL DISCLOSURE REPORT
NOMINATION FILING

Report Required by the EtftiCx
in Government Act of 397ft
(5 U.S.C. app- ff 101-lH)

1. Ptrto* Reporting (last name, first, middle inilbl)

Jacltsort, Richard B.

1, Court or Orgcoirafloa

UNITED STATES DISTRICT COURT FOR THE DI5TR
ICT OF COLORADO

J. Date of Report

01/05/20fl

4. Till* (Article til judge* indicate active of senior statu;;
magistrate judges indicate fall- or port-time)

DISTRICT JUDGE

Sa. Report T)-pe (chrcl appropriate type)

jyfj Nom bunion, Date 01/051501 (

| | Initial | } Annual J [ Final

&. Reporting period

01/01/2010

to

01/05/2011

5b. j 4 Amended Report

7. Chamber* or Office Address

100 JEFFERSON COUNTY PARKWAY

DIVISION 6

GOLDEN CO 80401

8. Or lb« bull of 11 m Information contained In this Report and ony
taadificitlant pertaining thereto, it li,in my opinion. in compliance

With lppltenlfle tow* and regal* Sent.

Reviewing Officer Dale

IMPOR TANT NOTES: Tile instructions accompanying this form must be fallowed. Complete all pans,
checking the NONE box for each part where you hare no reportable information. Sign on last page.

I. POSITIONS . (Stpunum injirutva/ anfyi tee pp. t-li o/Jibng uutrwawiO-J
[/~| NONE (No reportable positions.)

POSITION NAME OF ORGAN tZATION/ENTITY

II. AGREEMENTS . {Reporting individual only; sec pp. i*-I6ef flH*g InsItmcIlDin )

[/] NONE (No reportable agreements.)

0AIE BA BH B&A M I1IB&MS.

3 .

249

B- Spouse's Noil-Investment Income - Iff on were marred dnrirtg nnypurtion of the reporting year, compJrtc this section.
(Dollar irmount not required except for Honoraria,}

NONE (No reportable non-investment income.)

IV. REIMBURSEMENTS — mtiupanormn, tcJgmg.fooJ, thttrtoinmmL

(Includes those to spouse und dependent children: sec pp. 2S-27 of filing instructions.)

QJ NONE (No reportable reimbursements.)

SOURCE DATES LOCATION PURPOSE

1. EXEMPT

250

FINANCIAL DISCLOSURE REPORT

Nsm* of reran HepMtinfc

Dale of Refxirt

Page 3 of 14

Jacluon, Rkbard B.

01/05^201 \

V. GIFTS. ftnrinia ihoirte spouu oml dependent chUJ~tn; zeepp. 78-31 offilius; im/ructuit*.)

| ] NONE (No reportable gifts.)

SOURCE DESCRIPTION VALUE

I. EXEMPT

VI. LIABILITIES. (Includes lhatt cf tputru and dependent chlhJten; ter pp. il-ti of fBinn inaruclioitt.)
[/] NONE (No reportable liabilities,)

251

FINANCIAL DISCLOSURE REPORT

Name of Perron Reporting

Dele of Report

Page 4 of 14

Jackson, Richard B.

01/05/20!!

VII. INVESTMENTS and TRUSTS —Income, idiot, tHHioeuont (huiuJti those of spouse and dependent chiiirtK see pp. S4~6D of fifing irrstrtictioiti)
1 | NONE (No reportable income, assets, or transactions.)

A.

Distripiioji of Ass els
(including trot assets)

B.

Income dor-ins
reporting period

C.

Gross vfkc at end or
reporting period

D.

Transactions during reporting pcrtoQ

Place ~(X.y after each asici
escrr.pl from prior disclaare

O)

Amount
Code 1
<A-M)

ay

Type (e-g-,
dtv., rent,
ariai)

ft)

Value

Code 2

(J*P>

«

Value

Method

Code 3
(Q-W)

(»

T>pe (e.g.,
buy, sell,
redemption)

(1)

Dam

Month -
Day

P) j (*)

Value I Gain
Code 2 j Code 1
(J-P) |(A-X)

(5) j

Men hly of j

boyrt/wllcr
(if privete |

transaction) !

1. IRA #1

Exempt

2. -VANGUARD VALUE VIPERS

B

Dividend

L

T

3. -VANGUARD FTSE ALL WORLD EX US
INDEX-

A

Dividend

K

T

4. -VANGUARD EXTENDED MKT VIPERS

A

Dividend

L

T

5. -VANGUARD GROWTH VIPERS

A

Dividend

L

T

6. -BNY MELLON MUNICIPAL OPPOR
TUNIT1ES FUND

■

J

T

7. B-NY MELLON NATIONAL 1NTERMEDI
ATE MUNICIPAL BOND FUND

B

Dividend

K

T

8. -US TREASURY NOTE 1/20 1 1

■

H

T

9. -US TREASURY NOTE DTD 10/2012

■

K

T

10. -US TREASURY NOTE 07/1 3

A

Dividend

U

T

11. BROKERAGE ACCOUNT #1

12. FED HOME LN MTC» CORP

B

Dividend

u

■a

13, FED HOME LOAN BANKS

B

Dividend

m

■

14. US TREASURY NT 1 1/12

B

{merest

L

T

15. US TREAS INFLATION IND BOND

A

Rile rest

L

T

IS. US TREASURY NOTE 6/2016

B

Interest

L

T

IT. US TREASURY NOTE 12/16

B

Interest

L

T

I I. IwomcCxmCodt*:

<S*c Cokimai fll mid D4)
i 2. Vaioe Cedn

(Set C<durauCta<l4D31

A ”51.000 Of kti

F-fSO.Ml-IIDQ.0M

J-HWOOwle»

N -SUOMI • IMftWO
P3 =515,000.031 - Kfl.MftMO
Q “Appra'ial
11 -Boole Value

B -11.001 -52200

r. -1100,00! - J1.MC.000
K -SUM I -SS0.0C0
0 -two.001 - St.MOiXO

0-52.501 -55,000
Ml -tl.MO.Ml . SS.OfXMOO
L -15CJMI - 5100.000
PI -fl.000,MI -1S.0M.0M
M -More .hai* SHSMOMO
S *AtKun»t
W ’Etlimaied

D "55,001 -515,000
112 -More Own U.MO.MO
M -J1M.M1 - S2JO.MO
P2-SS.000.M1 -525.MIUM0

T 'Cert MnVa

E -SIS, 001 - 550,000

252

FINANCIAL DISCLOSURE REPORT
Page 5 of 14

Name or Purs an Reporting

Dste of Rvporl

Jact-son, Richard B.

01/05/201 }

VII. INVESTMENTS and TRUSTS — iiKOMU, t'ohir, transactions (Includes those of spouse end dependent children; sccpp. Si- 60 of filing instructions.)
|_ [ NONE (No reportable income, assets, or transactions.)

B.

Income during
reporting period

c -

Of oc velue a! end of
reporting period

D. j

Transactions during reponmg period i

O)

Amount
Code t

(A-H)

(2)

Type (e.a,

dlv.,joit.

<»>

Value

Cod; 2

(1-Pi

(2)

Value

Method

Code 5

(Q-W)

(1)

Type («-e.

buy, sell,
redemption)

<»

Dore

Month -
Day

W

Volte

Code 2
<J-P)

(0)

Oarn

Code 1
(A-H)

(S)

Identity of 1

buycr/seflcr
(if private
transaction)

Description ofAeseiS
(indudriig fruit ss«ts)

Plane "(X)" after each met

enempi flora jwiordiscfcsure

18. US TREASURY NOTE 7/17

A

interest

L

T

19. US TREASURY NOTE 5/10

A

Interest

20. GEN ELECT CAP CPR 9/1 7

A

interest

K

T

21 . WELLS FARGO CO 5.25% 10/12

B

Interest

K

T

22. AETNA INC

B

Interest

K

T

23. PFIZER INC

B

Interest

n

■

24. GOLDMAN SACHS GROUP INC

B

Interest

K

T

25. AT & T INC

B

Interest

■

■

26. (SHAMES S&P GSCI COMMODITY IN D
EXED TRUST

A

m

■

Interest

L

T

28. SPDR TRUST SERIES 1

B

M

T

29. ISHAkES TR MIDCAP

B

Dividend

L

T

10. SPDR DOW /ONES INDUSTRIAL AVER
AGE

D

Dividend

H

31. (SHARES MSC1 EAFE 1NDX FUND

B

m

32. RYDEX MANAGED FUTURES ST RAT
EGY FD

B

None

■

■

B

33. (SHARES RUSSELL 1000 INDEX FUND

B

Dividend

T

■

34, ISH ARES TR S&P SMALL CAP 600

Dividend

L

T

i. Idcmim Ciln C oda :

(See Cntumra HI ud [Ml
?. Value Cn*t

(hu CotoiiDB Cl am) W)

A -Hoover im
F-SJCUIOI . SIM, 000
> -J 1 5.000 or leu
N -HSO.Oftl • lUKLOOU
w-n3.0M.cm •mo.om.wo

Q '■Apprtilli
U^Book Vihic

g ■»* ion .nor ■ si.ooo.oM
% «JIS,ft)l - ISCUHO
O-1S00.00I ■ JI.00a.W0

C-n.J0I-t5.D00

hi -sij)aO,ooi - jj.ootuwo

L-SJO,DOi - JIB0.D00
PI ~J 1.000,001 - 1J.OOO.OCO
M -Mom Oran 550.000,000
S-Ajneumcn* _
WnEUimaial

D-tJ.O0I-tf5.OOO
m -More than SS.CflO.OOO
M-5IOO.OOJ-J2SO.OtH
n -15,000.00! - 125,000,000

T-Cuh Market

£-tIJ.00i - JM.00C

253

FINANCIAL DISCLOSURE REPORT

Name of ?enwi Reporting

Dole ef Report 1

Page 6 of 14

Jackson. RIchord B.

01/05/2011 ■ I

VH. INVESTMENTS and TRUSTS — income, mint, transactions {Indmltf those vf spouse Bad dependent children; set pp- 34-tO of filing instructions.)
| | NONE (No reportable income, assets, or transactions.)

A.

DcvcHpu'on of A nets
(including mat aucu)

Place "{XI’* after coch assei
exempt from prior disetosnre

8.

Income during

reporting period

c.

Gross value si end of
reponing period

D.

Transactions during reporting period

0)

Amount
Code I

(A-H)

<2>

Type (e.g..
div„ /tat,
or ini)

0)

Value

Code 2
(IP)

<2> n
V»>ue

Method
Code 3

(Q-W)

m

Type(c.g-,

redemption)

(2)

Date

Month -
Day

(3)

Value

Code!

(J-P)

.

<4>
Grin
Code I
(A-H)

(S)

Mentiiy of
buyer/seller
(if private
rr*o»ciicD>

35. VANGUARD EMERGING MARKETS E
TF

A

Dividend

L

T

36. FED HOME LN MTG COR?

B

Dividend

37. FED HOME LOAN BANK

H

Dividend

M

T

38. FED NAT MTG ASSN

■

|

n

if 4010) #1

40. -P1MCO TOTAL RETURN FUND

B

Dividend

B

sa

41. -DODGES A COX BALANCED FUND

B

Dividend

T

42. -DODGE & COX STOCK FTJNO

B

Dividend

J

T

43. -FIDELITY CONTRAFUND

B

Dividend

1

T

44. -RAINIER LG CA P GROWTH EQUITY

B

Dividend

J

T

45. -AMERICAN FUNDS EUROPACIFIC GR

B

Dividend

J

T

—

46. BROKERAGE ACCOUNT «

47. CHEVRON CORP

B

Dividend

K

T

—

48. EXXON MOBIL

C

Dividend

L

T

49. AIR PRDTS AND CHEMICALS INC

B

H

T

L-n

50. EMERSON ELECTRIC CO

A

Dividend

K

T

S l . GENERAL ELECTRIC CO

A

Dividend

K

I I. Instant Cm Cacti:
i (Set Colurau D> end D4)
2. Value Caiki

I (SnColwwlCI and 03)

A-»|ja£B<rl*u
F-550XCI-SIOO.OOO
J’J 15,000 Dfkll
n-jjmjkji . j.vxyxw
Pi=*2j, oooooi -siojsoo.fflm

Q Appoint
U -Book Value

B -*l, 001 - 52,500
G ^ilOQDOl - H.OOOJWO
K -111.001 .WO, 000
o-ssoopoi -it.ooaoco

R -Coii (Rea) Fume Oniy>

C'UJOl -55,000

Id »si,aoo,ooj - si.aoa.DDO
t-uoiooi.sioaooo

PI ’51. 000.00 1 - 55,000,000
Pi -Mora Him SJOJDOO.OOO
S-As«mmcM

D - 55,00 1 . 515,400
HI -Mere 0i» 5 5.000.000
M -JtODAH - IZW.OD0

-ns.fioo.ooo

T *C«h Mnkct

254

FINANCIAL DISCLOSURE REPORT

Name of Person Nepcrtiag

Dwe of Report

Page 7 of 14

Jnckson, Hichard B.

01/05/101 1

VII. INVESTMENTS and TRUSTS -m. value, inmaetioru (Includes ikase of spouse ant iepemttni ckBJrtn; set pp, 34-60 of {Mag instructions.)
□ NONE (No reportable income, assets, or transactions)

A.

D«iiiplion of Assets
(indudjng truil assets)

Pin* “(X>“ after each asrei
otefr.pi front prior disclosure

B.

Income during
rtportroj period

C.

Gran vaine at end of
reporting period

D.

Transaction a dining reporting period

m

Amount
Code I
fA-H)

(2)

Typc(e.g,

<D

Value

Code 3

(J-P)

(2)

Value

Method

Coded

(Q-W)

(«)

Typefe-g,
buy. sell,
redemption)

a)

Date

Month -
Day

<3>

Value

Code 3

D-P)

(4)

Code!

(A-H)

IS)

identity or
baiyer/iclkr

Of private

rnuieetion)

52. UNION PAC CORP

A

Dividend

K

T

■

53. UNITED TECHNOLOGIES CORP

B

B

T

5<L WALT DISNEY CO

B

mu

T

B

B

55. JOHNSON CTLS INC

A

Dividend

l

■a

1

56. STARBUCKS CORP

B

Dividend

M

T

57. NESTLE S A SPONSORED ADR REPSTG
REG

A

Dividend

B

B

58. PEPSICO INC

*

Dividend

K

T

59. PROCTER & GAMBLE CO

B

B

T

— n

B

J

T

61. JOHNSON & JOHNSON

B

Dividend

■

T

62. PFIZER INC

A

Dividend

J

T

63, THERMO FISCHER SCIENTIFIC

None

64. TEVA PHARMACEUTICAL INDS LTS

fl

Dividend

65. 1NVESCO LTD

A

Dividend

J

T

66. ACE LTD

A

Dividend

K

T

67. JP MORGAN CHASE &. CO

A

Dividend

J

T

68. MORGAN STANLEY

A

Dividend

J

T

I I . Intone Gain Cadsi:

I {See Col anul 5 8 i and D4)

| 2. Value Cr*ka
| (SccCoWiCluwtDJ)

| 1 Value Mflhnd Coda
I (See Column C2)

A -1 14)00 « leas
F-MD.OO! -JI0C.0M
J -1IS.M0 M leu
M -f 250,001 - 1500,000
PI -S21.000.Mt ■ JSl.AOOjBfl
Q-Apporul

U -Boot Value

B ”11,001 ■12,100
G ”1100461 -11,000.000
K -115401 -150.000
O ”1500,001 -11,000,000

C -13.101 • 13JM0
(II -11.000,001 -1M04000
L ^ ISO. 00 1 - 1100,000
PI -1 1 .900.00 1 - 0^00,000
N -Mr* ihm 150,00000(1
S -Aneasnanl
WoEMin\Mt«t

n -«4»i -tudno

H2 -More Own 11,000.000

M -11004X11 -*250,000
PI -15,0004101 - 125.aoa.000

T “C«h Market

E -$11,001 - 150.000

255

FINANCIAL DISCLOSURE REPORT

.Name of Pcnon RejMrttne

DaieofHepen j

Page 8 of 14

Jackson, Richard B,

61/05/20U

VII. INVESTMENTS and TRUSTS — inoinur, is! be, fransaelwi n (InHudts thou ofspoase end dependent children; seepp. 34-iO of filing insmtcthm.)

i | NONE (No reportable income, assets, or transactions.)

' A ' j

Dtltri prion Of AJiels

(including uust auete)

[ 3.

Income during |

! reporting period

r *

Grosi value at end of !
| reponing period j

b. !

Tmnsnctums during reporting period

L... _ _ J

i Place *{X)’’ after each ««i

! dtpipt from prior disetoiure

L_

(D

Amount
Code 1
<A-H)

j m

! Type(c.e,

1 div,. rent,

| or ini.)

ip

ran

Value
Method |
Code/ j
(Q-W> ,

(1) j

Typcle.g..
buy, jell, i

redemption) |

(i) !

1 Dale ;

l MoiHIi- j

i i

j

(3> |

Value

Cede 2

0-?)

(O |

1 Code 1 :
(A-H) |

<3>

| Identity of

| beyw/seller

(if private
van section)

69. STATE STREET CORP

A

Dividend

J

T

70. US BANCORP

A

Dividend

J

T

71. WELLS FARGO AND CO

A

Dividend

J

T

B

72. ACCENTURE PLC

A

Dividend

J

T

■

73. APPLE INC

■

K

T

74. CISCO SYSTEMS INC

A

None

■

■

75. GOOGLE INC

A

None

J

T

■

1

76. HEWLETT PACKARD CO

A

Dividend

J

T

■

■

B

77. INTEL CQRP

Dividend

J

T

78. MASTERCARD INC

■

79. MICROSOFT CORP

K

J

T

80. SALESFORCE.COM INC

■

;

T

8!. SEMPRA ENERGY

B

)

T

82. WATSON PHA RMACEUTICA LS INC

A

Dividend

i

Y

83. ZIMMER HOLDINGS INC

B

Dividend

j

■

84. ISHARES MSCI EAFE INDEX FD

B

T

85. (SHARES MSCI EMERGING MARKETS
FD

A

Dividend

K

T

I I. Itwctn* Gtin Cuke
! fSecColuauu BJ ud EM)
ZVdvcCrde*

I iSee Cclmno. Ci ted 01)

j J.VdwMeiXsUCodO
1 (See Column Ci )

A -J!, 000 or leu

J=5IS,0OQMku
N-XHU.M! -5303.000
PI =535.000.001 - 530.000.000
<J '’Appnlial
U -Bank Value

0 -5I.»I *53.50©

C =510000 1 -tl.O00.COC
K-SIJJXH -150.0B)
0-5500.001 -5I.OCO.OCO

R -CoaiRcal Eittc Only)
V=Oiher

C -52,301 - 55,06©

III -5I.D0Q.D0! • 51.000,000
L =450.001 -5100.000

PI “5l.0fn.00l .13.0003)0©

M -Mart (tun 550,000/100
S =Aa«3iineni
W -Eaiineitd

D -55,001 -51 J.OOO
H2 -More dun 15.000,000
M -JIOOjOOl -5150,000
ra-tWttft001- 515,000,000

T-CiAMBkel

E-SIJ.MI-5Ki.M0 j

1

256

FINANCIAL DISCLOSURE REPORT

Page 9 of 14

Name of Penan Reporting

| DottofRcpon

Jackson, Richard D.

j 01/05/201 1

VII. INVESTMENTS and TRUSTS - income, tclur, transactions (tndndes tltoit oj spouse anil Jepemleur children; set pp. 34-60 o/ftiinx imrocoons.)
j | NONE (No reportable income, assets, or transactions.)

A.

Description of Asseis
(including hum tttets)

n.

Income during |

repairing period

C.

Gross valued end of 1
reporting period ,

a 1

Transactions during rtpcnkig period |

Place TX)” slier each asset
exempt Horn prior disc Inure

L

i m

Amount
Code 1
(A-H)

m

Type (c-g..
div., renl,
oriitL)

(»>
Value
Code J

(IP)

o> n

VihjO
| Melhod
Code 3
(Q-W)

0)

| Type (e.g..
j buy, sell,

redemption)

P) !

Diu

Month - ;
Day

t» :

Value 1
Code 2 ;

(JP>

(D I

Code !

(A-H)

o> 1

[ Identity of 1

1 huynftetler j

(if private

fra inaction) 1

E6. VANGUARD EXTENDED MARKET V)
PERS INDEX FUND

A

Dividend

L

T

87, DENVER CO CITY & CTY SCHOOL DS
TRICT

B

Interest

L

T

88. CASTLE PINES NORTH MET D1STCO

C

tntoesi

L

T

mi

■

■

89. THORNTON CO OTD

B

Interest

L

T

■

■

■

90. R ANGELY CO 5CH DIST RE 4

■

L

T

91. SNOWMASS VIG CO

B

Ini crest

L

T

92. FLORIDA HSG FIN CORP REV

B

Interest

H

■

93, UNIV COLOR ENTERPRISE SYS REV

n

L

T

94. METROPOLITAN TRANSN AUTH NY

B

Interest

L

T

95. METRO WASTEWTR RECLAM DSTR

CO

B

Interest

L

T

96. EL PASO CTY CO REV

B

Interest

L

T

97. BNY MELLON MUNICIPAL OPPORT
UNITIES

B

Dividend

K

T

98. BNY MELLON NATL MUNI MONEY
MKT FUND

■

B3

T

99. HILLSBOROUGH CTY FL BOND

■

2

100. ORACLE CORP

Dividend

10), COMCAST CORP

A

Dividend

102. HUDSON CITY BANCORP INC

A

Dividend

I I. Mean* G.in Codex
1 (Set Cahuui* HI w4 l>l)
! J Vil«C«ta
, (SeeCalimmsCI ««4 Dl)

A -SLOW) or leu
p -sjo.oqt - stotyx©
i -J3J,Wt>0( lew
M ^J2S0,t»l

pi "iis,ooc.wi - ssa.«io.oiu

Q« Appoint
U “OooV Vdue

a^ij»i-s2,5!»

G-tU»,«0! ■ $1^00,000
K “IlJjOfll - SiO.OM
Q -MOO.Ofl) - SI, 000.000

C-SJ.JOI.Ji.000
Ml •>1.000,001-15,000,000
L -150,001 ■ 5100.000
PI -Fl.OOO.OOl . U.OTOAMO
P4 -Mon Am JJty>M,O0C
S -AsseunKOt
W •EMimited

D-W.MI-M.M0
H2 -More **c Ufftb/XO
M-tH»,D01 -S2JWW0
P2 -ss.Ksywi . njvottyMo

E-Jis.aoi'Uo.ooo

t. V«kie Mfihod Coda
(See Cfthnnn C3)

R -C«l(Rrol Euxtt Only)
V -Other

T-CohMvfel

257

FINANCIAL disclosure report

Name of Person Reperfing

Date of Rep on

Page 1 0 of ] 4

Jackson, Richard li.

(M/05/2011

VII. INVESTMENTS and TRUSTS — income, nlae, transactions (Includes those of spouse and dependent children; see pp- 34-60 of filing inslrkitians.)
| "~| NONE (No reportable income, assets, or transactions.)

A.

Dcwriptkm of Assets
(including trust Alien)

Pta« *(X)‘ after eaeti use i
mmpi fmm prior rfisdosutc

B.

Income doting
reporting period

c.

Gross value at end of
reporting period

Transactions during reporting period

Amount

Code!

(A-H)

(2)

Fypefe.g,
div., rent,
or ini.)

0)

Value

Code 2

(J*P)

(2)

Value

Method

Code3

<Q-W)

0)

Type {«•«..

buy, sell,
redemption)

(2)

Date

Month -
Day

0)

Value

Code 2
(M*)

(4)

Code!

(A-H)

0) ;

Identity of j

bnyer/seller I

(irprivatc j

transaction) 1

I0J. EXELON CORP

A

Dividend

104. IRAM

105. -DREYFUS PR LJIG CAP EQ FD

A

Dividend

L

T

1015. -VANGUARD FTSE ALL WORLD EX US
INDEX FD

A

Dividend

K

T

107. -VANGUARD EXTEND MKT VIPERS IN
DEXFD

A

Dividend

B

B

108. -BNY MELLON INTERM BOND FUND C
LASS M

■

K

T

109. -DREYFUS PREMIER LTD TERM HIGH
YIELD FD

n

B

T

1 10. -AIM STIT TREASURY PORTFOLIO

m

J

T

111. BROKERAGE ACCOUNT «

1 12. DREYFUS LARGE FUND GROWTH F
UND CLASS 1

A

a

T

113. BROKERAGE ACCOUNT #4

1 14. AMERICAN STRATEGIC INCOME V
ORTFOLIO

B

Dividend

K.

T

115. CVr GROUP INC NEW

None

J

T

1 1 6. GABELL1 DIVIDEND Sc INCOME TRUST

B

J

T

1 17. AIM 1NV INVESCO VAN ECAMPEN COR
P BOND FD.

B

Dividend

K

T

118. AIM IN V JNVESTCO VAN KAMPEN HI
GH YD FD CLASS A

A

Dividend

K

T

119, WELLS FARGO FDSTR SPEC) TF.CKN

1

No”

I.lntonr Cain Coda;

! (5t« Column* n I and D4)

; 1. V«Iue Codes

(See Columns C J and DJ>

A -Jl.OOOwlcsr

-1100,000
J-5! 5.800 Kta)

N-JJJO.OM - MM.0W
pj -sjj,cwu»i - i50.otia.ooo
Q -Appoint
U -Book v»hic

B-JI,06l-tt.J0G
G -ilOC,M! - SI £00.00)
K "ii j, oat • uouoo
0-I5OMKVI -$(.000,000

C-43.JOt-JS.000
HI -JUIOOlOO? ■ SS,AM,0M
L "550.001 -IIM.OOO
Pi -ii.oms.ooi - js.aoe.om
r* -Mine lh*n J JO.OOO, 000
S - AueflrKH
W =£HHllStCd

D-SJ.D01 - JiSJJOD
H3-Mweihinl3m«n
M-ilDODOl -H50.000
pi - js.ooaoot . sis.bcc.oqc

t -C«jfc

E-SIS.OOI - 550.000

258

FINANCIAL DISCLOSURE REPORT

Page 1 1 Of 14

Name of Persau R*porlin{

Date of Report

Jackson, RlcJinrd B.

duoinsm

VII. INVESTMENTS and TRUSTS —income, value, trattwliam f Includes rhaie of ipaast and dependent ch VJ/em Stepp. 3i-60 of filing instructions.)
| ~| NONE (No reportable income, assets, or transactions.)

A.

Description cfA«ela
{including trittl aascu}

Place "(X)" after each aesrt
eeempt from prior disckuurc

B,

income during
reporting period

C.

Grow vahre it end of
reporting period

D,

Transactions during reporting period j

0)

Amount
Code t
<A-H)

(2)

Type (e.£,
d>y, rent,
ormt)

(I)

Value

Code*

(J-P3

...

(2)

Value

Method

Code 3
(Q-W)

CO

Type (t.g.,
buy, Kit,
redemption)

(2>

Date

Month-

Day

0)

value

Code!

(FP)

W

Cab
Cotie 1
(A-H)

(5) j

Identity of i

buyer/Kllet j

(ifprivale

transoctino) j

120. err GROUP (NC NEW NOTE 5/13

A

Dividend

J

T

12). CIT GROUP INC NEW 5/14

A

Dividend

J

T

122. CIT QROUP INC NEW 5/IS

A

Dividend

r

T

123. CIT GROUP (NC NEW 5/16

A

Dividend

J

T

124. CIT GROUP INC NEW 5/17

.

A

Dividend

)

T

125. GENERAL ELEC CAPITAL CORP MID
TERM NOTE

B

■

T

B

B

126. WELLS FARGO BANK (VARIOUS A
CCOUNTS)

m

K

T

127. TRUST #1

128, -SPDR TRUST SERIES |

A

Dividend

K

T

129. -SPDR DOW JONES INDUSTRIAL AVER
TRUST

B

H

T

130. -ISHARES MSC) EAFE INDEX FD

B

)

T

131. -f-SHARES MSCI EMERGING MKTS FD

B

Dividend

■a

T

132. -VANGUARD EXTENDED MKT VIPERS
INDX FD

B

Dividend

K

T

133. -BNV MELLON NATL INTER MUN BD
FUND

fl

Dividend

L

T

■

m

134. -BNY MELLON NATL MUNI MONEY
MKT FD

B

Dividend

J

T

135. -US TREASURY BILL

A

Interest

J

T

136. -DIAMONDS TR

A

Dividend

I. Incimte Gen Coder.

(See Cabin*- SI *nd W)
3. Value Code*

(See C-oJlowllCI mi DJI

F-S50LQ0I • *100.008
J-SIS.DOOa/ tew
N -UJDDOI - S3 DRUM
PJ d 1SJMOOOI - SSROORODn
Q "Iltoiul
V -Bodt Vnhie

R-S1.00I -12.5M
Cj-tmm .tijcoaco
K =*15,0(51 - 130,030
O =$500,001 - *1,000,000

X *C«i (Real Euilc Daly)

C -I2.MI- 13,000
Ml -ti.MQ.MJl • 11.800.030
L -330,001 - IlM/tOO
PI -11,000,001 .15.M0.Caj
M -More than i30.0cn.000
S=Aueumem
W =F»ti®»*ed

D "15.001 - 115,000
111 -Mom Am SJ^OOiMO
M -11 00.001 -H50.000
P2 *131100,00) • IB. 003,000

T-OufiMirUl

259

FINANCIAL DISCLOSURE REPORT

Name of Penoo Reporting

DtteofRtpofl

Page 12 of 14

Jockton, Rickard B.

omstion

VII. INVESTMENTS and TRUSTS - income, mine, traiuactions (Includes thitu of spouse and dependent dtUdren; set pp. 34-60 of filing instructions.)
[ | NONE (No reportable income, assets, or transactions.)

A.

Dcscri ptioo of Assets
(including husl 4«*ls)

B.

Income during
repealing period

c.

Gnus volue si end of
reporting period

D. |

Trenueuonr Airing reporting period I

(Tact *(X)* after »ek «»t

exempt from prior disclosure

(I)

Amount
Code 1
(AH)

(2)

Type (e g..
div., rem,
ormt.)

(1)

Value

Code!

(1-P)

(2)

Value

Method

Code 3

(O-w)

(1)

Typo (e.g..
buy. del),
rede re fid on)

(2)

Date

Month *
Day

(3)

Value

Code 2

(NP>

(4)

Code I

(A-H)

<J> 1

[demy of j

baiyrrAeller j

(if private i

tnnsacikm) J

137. TRUST 02

■

138. -5PDR TRUST SERIES l

B

Dividend

L

T

1 39. -SPUR DOW JONES INDUSTRIAL A V
TRUST

9

Dividend

L

T

140. -1SHARES MSC1 EAFE INDX FD

■

jjj

K

T

14|. -1SGARES MSCI EMERGfNG MKTS IN
DX FD

J

T

■

M2. -VANGUARD EXTENDED MTK VIPERS

H

■a

■

■

M3. -COLO ST BD GOVERNORS UNIV ENT

m

L

T

M4. -BOULDER CNT CO SALES TAX

u

L

T

M5. -BNY MELLON NTL TNT MUN DD FD

c

Dividend

L

T

146. -US TREASURY NOTE 3/1 1

8*

K

T

147. -US TREASURY NOTE 7/12

■

Hi

T

■

1

148. -BNY MELLONNATL MUNI MONEY
MKT FD

A

Dividend

X

T

149, -DIAMONDS TR

B

Dividend

) I. Income Gain Codec
| (See Column B\ and IM)
j 2. VaKr Code*

1 (See Column Cl

). Vatur MriHod Code*
j (See Cultrm Cl)

A ‘-1I.OCO or leu
F =450,001. JtOO.OQA
J -Jli.OOOm Jeu
N -5750,001 -5500,(500
PJ "125.000,001 -550.000000
Q “Apjaaiul
U -Hm>V vjloc

B’SI.COI - H.JDO
O •5100.051 - 51.000,000
K -SI 5001. ISO, OW
O'UDO.001 - 5 I 000,000

ft -Com (Real EsweOnljr)
V-OUior

C-MJOl -55000
h I -115*50,(01 - JVOOOiOOC
L "550,001 -1100,000
Pt «S 1.000,001 - «.0O£lA»
M -Molt Ow JSO.OOO.QOO

D "45.001 -115.000 E-JU.OOI . 150,000

K2 "Um thin SlDOOfOQ
*1-5100001050,660
fi-*s,ooojooi - $55,ooaooo

V «Efilro*im

T "Cwh MuVci

260

FINANCIAL DISCLOSURE REPORT
Page 13 of 14

Na me t F Person Reporting j

Jackson, Richard B.

Date of Report

01/05/2011

VIII. ADDITIONAL INFORMATION OR EXPLANATIONS.

FINANCIAL DISCLOSURE REPORT

Kane ofTtewit Rrporttac

Dale *f Report

Page 14ofI4

Jackson, Richard B.

OU05/30U

IX. CERTIFICATION.

I otrtiiy CtiKt ■!) InfoflnstlM Rtvw ptuvc (lartwling Jnforntailoa pnliWng u> my spnttse and minor or dependent children, 1/ any) h
accurate, true, and complete lo Hit ben of cy knowledge and belief, and that any Information rift reported Wiu withheld beeaeteU met applicable statutory
provfjkm perm h [tag non-dlirluSUrc.

I farther certify thot earned Income from collide employment and honoraria and the accepts tK« of glftt which have been reparted are In
compliance with the prsvfctioni of 5 U^C. *pp. fi 501 <t. Mq., 5 IfS-C. $ 7351, and Judicial Conference regulation!.

NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR KAILS TO FHH THIS REPORT MAY BE SUBJECT TO CIVIL
AND CRIMINAL SANCTIONS (5 ILS.C. epp. J IW)

FILING INSTRUCTIONS

Mai! signed original and 2 additional copies lo:

Committee on Financial Disclosure
Administrative Office of Ihe United States Courts
Suite 2-301

One Columbus Circle, N.E.

Washington. D C. 20544

261

R . Brooke Jackson

FINANCIAL STATEMENT
NET WORTH

Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank accounts, real
estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans, and
other financial obligations) of yourself, your spouse, ard other immediate members of your household.

262

FINANCIAL STATEMENT
NET WORTH SCHEDULES

U.S. Government Securities

U.S. Treasury Notes

U.S. Treasury Inflation Indexed Bond

Total U.S. Government Securities

Listed Securities

Account Ml

VANGUARD VALUE VIPERS

VANGUARD FTSE ALL WORLD EX US

VANGUARD EXTENDED MARKET VIPERS

VANGUARD GROWTH VIPERS

BNY MELLON NATIONAL 1NTERMED MUN BOND

BNY MELLON MUNICIPAL OPPORTUN FUND

CRA BNY MELLON

ACCRUED INCOME

Account #2

SPDR TRUST V SERIES I
SPDR DOW JONES INDUSTRIAL AVERAGE
ISHARES MSCI EAFE INDEX FD
[SHARES TR S&PMIDCAP400 INDEX
ISHARES RUSSELL 1000 INDEX FD
ISHARES TR S&PSMALLCAP 600
VANGUARD EMERGING MARKETS ETF
FEDERAL 1IM LN MTGE CORP
FEDERAL HOME LOAN BANK
FEDERAL NATL MTG ASSN
RYDEX MAN FUTURE STRATEGY
FEDERAL HOME LOAN BANKS
AETNA INC

WELLS FARGO COMPANY
PFIZER INC

GOLDMAN SACHS GROUP INC
GENERAL ELEC CAP CORP
AT&T INC

ISHARES S&P GSCI COMMODITY
THE AIM STIT TREASURY PORTFOLIO
ACCRUED INCOME
Account M3

PIMCO TOTAL RETURN FUND
DODGE AND COX BALANCED FUND
DODGE AND COX STOCK FUND
FIDELITY CONTRAFUND
RAINIER LG CAP GROWTH EQUITY
AMERICAN FUNDS EUROPACIFIC GR
Account M3
CHEVRON CORP
EXXON MOBIL CORP
AIR PRODUCTS & CHEMICALS

S 287,968
53,076
S 341,044

S 68,116
43,522
37,625
73,03 1
46,258
9,951
12.506
377

256,536

254,493

173,632

129,686

165,614

62,351

75,596

52,436

102,625

54,156

19,680

57,641

25,654

26,880

27,451

26,951

27,536

28,576

17,818

112,103

7,570

49,383

38,466

11,967

14,503

11,777

15,610

44,048

100,862

25,866

263

EMERSON ELECTRIC 19,550

GENERAL ELECTRIC CO 9,498

UNION PAC CORP 20,275

UNITED TECHNOLOGIES CORP 22,58 1

THE WALT DISNEY COMPANY 9,675

JOHNSON CTLS INC 8,1 99

STARBUCKS CORP 134,640

NESTLE S A SPONSORED ADR REPSTG REG 42,416

PEPSICO INC 25,852

THE PROCTER & GAMBLE CO 47,940

ABBOTT LABORATORIES 8,139

JOHNSON Sl JOHNSON 43,085

PFIZER INC 9,291

1NVESCO LIMITED 10,327

ACE LTD 17,556

JP MORGAN CHASE & CO 1 3,090

MORGAN STANLEY 6, 11 5

STATE STREET CORP 9,288

US BANCORP 8,680

WELLS FARGO & COMPANY 16,326

ACCENTURE PLC 17,328

APPLE INC 20,225

CISCO SYSTEMS INC 1 3,4 1 2

GOOGLE INC 11,114

HEWLETT PACKARD CO 1 0,902

INTEL CORP 16,926

SALESFORCE.COM INC 13,922

WATSON PHARMACEUTICALS 1 0,967

MICROSOFT CORPORATION 1 1 ,260

ZIMMER HOLDINGS INC 9,852

SEMPRA ENERGY 10.018

ISHARES MSC! EAFE INDEX FD 1 1 7,473

ISHARES MSCI EMERGING MARKETS INDEX 43,437

VANGUARD EXTENDED MARKET VIPERS 103,916

DENVER CO CITY & CNTY SCH DISTR 50,004

CASTLE PrNES NORTH MET DIST COLO 79,564

THORNTON CO DTD 56,077

RANGELY CO SCH DIST RE 4 55,8 1 9

SNOWMASS VIG CO 55,973

FLORIDA HSG FIN CORP REV 35,068

UNIVERSITY COLO ENTERPRISE SYST REV 51,164

METROPOLITAN TRANSN AUTH NY 53,038

METRO WASTEWTR RECLMATION DIS COLO 53,289

EL PASO CNTY COLOR REV 54,496

BNY MELLON MUNIPICAL OPPORTUNITIES FD 24,879

BNY MELLON NATL MUNI MONEY MKT FD M 1 76,149

ACCRUED INCOME 1 0,969

Account ttS

DREYFUS PR LRGE CAP EQ 63,800

VANGUARD FTSE ALL WORLD EX US 21 ,423

VANGUARD EXTENDED MARKET VIPERS 1 8,845

BNY MELLON INTERMEDIATE BOND FUND CL M 46,756

DREYFUS PREMIER LTD TERM HIGH YIELD FUND 4,706

THE AIM STIT TREASURY PORTFOLIO 5,644

ACCRUED INCOME 123

2

264

Account ft 6

DREYFUS LARGE CAP GROWTH FUND CLASS I 24,69 1

Account ft 7

AMERICAN STRATEGIC PORTFOLIO INCOME INC 14,784

CIT GROUP INC NEW 4,8 1 4

GABELLI INCOME AND DIVIDEND TRUST 12,801

AIM INVESCO VAN KAMPEN CORE BOND FUND 24,403

AIM INVESCO VAN KAMPEN HIGH YIELD FUND CLASS A 20,69 1

CIT GROUP NEW SECURED NOTE SER A 1,420

CIT GROUP NEW SECURED NOTE SER A 2,106

CIT GROUP NEW SECURED NOTE SER A 2,096

CIT GROUP NEW SECURED NOTE SER A 3,486

CIT GROUP NEW SECURED NOTE SER A 4,843

GENERAL ELECTRIC CAPITA L MED. TERM NOTE 5,006

ACCRUED INTEREST 15,881

Total Listed Securities $ 4,077,285

3

265

STATEMENT OF SARA L. DARROW, TO BE UNITED STATES
DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF ILLINOIS

Ms. Darrow. Thank you, Senator Franklin — Franken — I’m sorry.
Not a good start.

Senator Franken. I am going to vote against you.

[Laughter.]

Ms. Darrow. I would like to very graciously thank you for
chairing this hearing.

Senator Franken. OK, then I will.

[Laughter.]

Ms. Darrow. And, of course, I’d also like to thank President
Obama for the honor of his nomination. And I would like to espe-
cially thank Senator Durbin for the privilege and the honor and the
confidence that you show in me in nominating me for this position,
and specifically for the opportunity to continue to serve my country
in the capacity as a district court judge.

If I may introduce my family.

Senator Franken. You bet.

Ms. Darrow. I have with me my husband, Clarence Darrow;
and, our children, Connor, who is 14; Lilia, who is age 13; Augie,
who is age 12; Anna Grace, who is 10; Ella, who is 8; and Danny,
who is 5 years old.

Senator Franken. Wow. Hi. That is great.

Ms. Darrow. Thank you.

Senator Franken. Welcome, all of you.

Ms. Darrow. I’d also like to introduce my brother, Mike Frizzell
who is here, and his wife, Katie Getsal (ph). They live here in DC,
but I’m happy that they made the trip here to support me today.

Senator Franken. Great. Welcome.

Ms. Darrow. And I’d also like to acknowledge some other family
members who couldn’t be here, but are watching the Webcast. My
mother, Cheryl Frizzell, who is watching from Nebraska; my father
and step-mother, Ron Frizzell and Susan Frizzell, who are watch-
ing from Michigan; and my in-laws, Clarence and Lily Darrow and
the extended Darrow family, who are watching from Illinois.

And I’d also like to give a special thanks to my colleagues and
friends at the U.S. attorney’s office in both the central district of
Illinois and also the law enforcement community there, and to all
my friends who are watching the Webcast here today.

Thank you very much.

Senator Franken. You are very welcome, and welcome to all
your friends and family watching over the Web.

Ms. Darrow, let me start with you. As an assistant United States
attorney, you specialize in prosecuting gang-related and organized
crime. These can sometimes be difficult cases to build.

Can you talk about how the challenges you face prosecuting gang
and organized crime cases have prepared you for the bench?

Ms. Darrow. Thank you for the question, Senator. Certainly,
when you’re dealing with violent crime cases that entail enterprises
such as street gangs and, also, drug trafficking organizations that
can reach into international borders, they deal with several facts
and complex legal issues and, also, logistical issues dealing with
witnesses, some who are not always cooperative.

266

I think that my ability to not only handle high volumes of evi-
dence and to organize it in a digestible manner, specifically for my-
self, the agents, and also, eventually, the jury or the judge, and,
also, my ability to partner with law enforcement and make sure
that we work together as a team to see that justice is served, I
think that all of those traits are easily transferable to the bench
and I would definitely employ those in presiding, if I am lucky
enough to be confirmed as a District Judge.

Senator Franken. Thank you.

[The biographical information of Sara L. Darrow follows.]

267

UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY

QUESTIONNAIRE FOR JUDICIAL NOMINEES

PUBLIC

1 . Name : State full name (include any former names used).

Sara Lynn Darrow (formerly Sara Lynn Frizzell)

2. Position : State the position for which you have been nominated.

United States District Judge for the Centra) District of Illinois

3. Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.

United States Attorney’s Office for the Central District oflllinois
1 830 2" d Avenue, Third Floor
Rock Island, Illinois 61201

4. Birthplace : State year and place of birth.

1 970; Pontiac, Michigan

5. Education : List in reverse chronological order each college, law school, or any other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.

1994 - 1996, Saint Louis University School of Law; J.D., 1997

1997 (spring term), Campbell University School of Law; no degree

Summer 1 996 & Summer 1 995, Georgetown University Law Center; no degree

1988 to 1992, Marquette University; B.A., 1992

6. Employment Record : List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation
from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.

268

2003 - present

United States Attorney’s Office for the Central District of Illinois

1830 2" d Avenue, Third Floor

Rock Island, Illinois 61201

Chief, Violent Crimes (2007 - present)

Assistant United States Attorney (2003 - present)

Special Assistant United States Attorney, Southern District of Iowa (2003 - present)
1999 - 2003

Henry County State’s Attorney’s Office

307 West Center Street

Cambridge, Illinois 61238

First Assistant State’s Attorney (2000 - 2003)

Assistant State’s Attorney (1999 - 2000)

1997-1998

Law Offices of Clarence Darrow
1515 Fourth Avenue, Suite 200
Rock Island, Illinois 61201
Associate/Intem

1995-1996

Law Offices of Timothy Hill
701 Market Street
St. Louis, Missouri 63101
Law Clerk

Summer 1995

Office of U.S. Senator Edward M. Kennedy
317 Russell Senate Office Building
Washington, D.C. 20510
Legal Intern

Summer 1995
The Irish Times
14 “F" Street NW
Washington, D.C. 20001
Waitress

Summer 1995, 1994
The Dubliner

520 North Capitol Street, NW
Washington, D.C. 20001
Waitress

2

269

1993-1994

S.O.M.E. (So Others Might Eat)

71 “O” Street, NW

Washington, D.C. 20001

Year-long Volunteer/Community Organizer

1992-1993
Pasta Tree

1503 N. Farwell Avenue
Milwaukee, Wisconsin 53202
Waitress

1991 - 1993
Celebrity Club
2203 N. Prospect
Milwaukee, Wisconsin 53202
Waitress

Other Affiliations

2009 - present

Rock Island Community Foundation
P.O.Box 3331
Rock Island, Illinois 61204
Board Member, unpaid

2007 - present
Snowstar Ski Resort
9500 126th Street
Andalusia, Illinois 61232
Ski Instructor, paid

2000-2004

Alternatives for the Older Adult
1803 7th Street
Moline, Illinois 61265
Board Member, unpaid

7. Military Service and Draft Status : Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.

I have not served in the military. I did not register for selective service because I was not
required to do so.

3

270

8. Honors and Awards : List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.

Community Caring Conference Quad Cities Community Hero Law Enforcement Award
(2006)

Illinois M.E.G. Directors and Task Force Commanders Association Narcotics and
Dangerous Drugs Enforcement Outstanding Prosecution Award (2004)

9. Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.

Associations

American Bar Association
Henry County Bar Association
Illinois State Bar Association
Rock Island County Bar Association

Committee

14 th Judicial Circuit Advisory Screening Committee (2002 - present)

10. Bar and Court Admission :

a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.

Illinois, 1998

There has been no lapse in membership

b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
in membership. Give the same information for administrative bodies that require
special admission to practice.

Supreme Court of the United States, 2007
United States Court of Appeals for the Seventh Circuit, 2004
United States District Court for the Central District of Illinois, 2000
United States District Court for the Southern District of Iowa, 2003

There has been no lapse in membership.

4

271

a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 10 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership on participation, and indicate any office you held.
Include clubs, working groups, advisory or editorial boards, panels, committees,

conferences, or publications.

Alternatives for the Older Adult

Board Member (2000 - 2004)

Combelt Running Club (2008 - present)

Christian Foundation for Children and Aging (2007 - present)

Girl Scouts of America

Troop Leader and Member (2003 - 2005)

Illinois Family Violence Coordination Council (early 2000s)

Rock Island Community Foundation

Board Member (2009 - Present)

Rock Island County Bar Auxiliary (former Secretary) (1999 -present)

St. Pius X Catholic Church Father Bader Scholarship Committee (2008 - present)

'

b. The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion, or national
origin. Indicate whether any of these organizations listed in response to 1 la above
currently discriminate or formerly discriminated on the basis of race, sex, religion
or national origin either through formal membership requirements or the practical
implementation of membership policies. If so, describe any action you have taken
to change these policies and pra:tices.

The Girl Scouts of America is an organization dedicated to creating opportunities
for girls. The Rock Island County Bar Auxiliary is a historically women-only
organization for spouses of members of the Rock Island County Bar Association
and it has only women members today; however, my understanding is that the
organization would welcome the spouse of any bar member who sought to join,
regardless of sex. None of the listed organizations presently engages in invidious
discrimination of any kind and I have no knowledge of any former discrimination
by these organizations.

12. Published Writings and Public Statements:

a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Supply four (4) copies of all published
material to the Committee.

5

272

Project Safe Neighborhoods Training, UNITED States Attorneys’ BULLETIN
(Mar. 2010). Copy supplied.

Although 1 have conducted a diligent search, there may be other published
material that I have been unable to remember or identify.

b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, give the
name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.

None that 1 recall or have been able to identify.

c. Supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.

Apr. 21, 2008: 1 spoke before the Rock Island City Council about a proposed
special assessment for resurfacing of streets near my neighborhood. Copy of
meeting minutes supplied.

Although I have conducted a diligent search, there may be other testimony,
official statements, or communications relating to matters of public policy or legal
interpretation that I have been unable to remember or identify.

d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by you, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk. If you do not have a copy of the speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.
If you did not speak from a prepared text, furnish a copy of any outline or notes
from which you spoke.

Over the last several years, I have spoken on a variety of topics including criminal
law and Department of Justice initiatives. I also participate in a range of non-
public law enforcement meetings on behalf of the U.S. Attorney’s Office,
particularly in my capacity as designated coordinator of several Department of
Justice programs, in which I am sometimes called upon to make comments about
major initiatives in our office or cases we are handling.

6

273

I have listed below all of the speaking engagements I could identify through a
search of my calendar and Internet databases. I have supplied all related material
that I could obtain.

Nov, 1 1, 2009; Guest Lecturer at Western Illinois University, Organized Crime
Law Enforcement Course. 1 spoke on organized crime and racketeering.
PowerPoint presentation supplied.

May 9, 2008: Panelist, roundtable program at the Illinois State Police Academy
for senior law enforcement officers. I spoke on identifying regional priority
targets, street-gangs, juvenile issues and violent crime problems. I have no notes,
transcript, or recording. The address of the Academy is 3700 East Lake Shore
Drive, Springfield, IL 62707.

Oct. 13, 2008: Continuing Legal Education presenter, Scott County Bar
Association. I gave a presentation entitled, “Updates in the Federal Sentencing
Guidelines.” I have no notes, transcript, or recording. The address of the
Association is c/o H.J. Dane, 1111 E. River Dr., Davenport, IA 52803.

2007: Presenter to a meeting of Rock Island County law enforcement officers and
prosecutors. 1 have no notes, transcript, or recording. The event took place at the
Rock Island County Courthouse.

2005: Speaker at a Proclamation Ceremony for National Crime Victims Rights
Week. I have no notes, transcript, or recording. The event took place at Rock
Island County Courthouse.

2004: Presenter, meeting of Mercer County law enforcement officers and
prosecutors. I spoke about Fourth Amendment issues. I have no notes, transcript,
or recording. The event was held at the Mercer County Courthouse, 100 SE 3rd
Street, Aledo, IL 6! 23 1.

2003: Speaker. I gave remarks on youth gun violence in the community. I have
no notes, transcript, or recording. The event was held at the Martin Luther King
Center, 630 9 th Street, Rock Island, IL 61 201 .

e. List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.

I have searched my files and publicly-available Internet databases to identify all
of the interviews I have given, and I have supplied the most complete listing
available based on my searches and my recollection, but there may be others I
have been unable to identify. I have supplied clips of all newspaper articles.

7

274

Dawn Neuses, Happy Father’s Day, Times 6, Quad-City Times, Jun. 16, 2006.

Staff, Geneseo Mail Theft Led to Bank Fraud Charges , Star Courier, Feb. 6,
2006 .

Dawn Neuses, Working Mom Sees Pros, Cons of Outside Job, DISPATCH & Rock
Island Argus, Mar. 26, 2004.

Matt Gergeni, Home-Schooling Parents Curious About Compliance Checks,
Dispatch & Rock Island Argus, Nov. 25, 2002.

Matt Gergeni, Truck-Length Question Keeps Driver Behind Bars, Dispatch &
Rock Island Argus, Mar. 26, 2002.

Scott Reeder, Court Overturns Death Sentence, Dispatch &. Rock Island
Argus, Feb. 23, 2002.

Matt Gergeni, Newborn Twins Taken from Mom , Dispatch & Rock Island
Argus, Feb. 15, 2002.

Barb Ickes, Twins Born with Meth in Systems, Quad-City Times, Feb. 1 5, 2002.

Lisa Hammer, Probable Cause Found Against Drug Defendants, Star COURIER,
Nov. 7, 2001.

Cesar G. Soriano, Cheap Beer, Canned Food and Charity for SOME ,
Washington Times, Apr. 13, 1994, at 04.

I recall giving television interviews on two occasions for which I have no
recordings, transcripts, or other material:

Sept. 28, 2009: local media. I spoke about the demolition of a house forfeited due
to drug trafficking.

2001 : local media. I spoke about the launch of a campaign to collect used cellular
telephones for re-purposing as emergency phones for domestic violence victims.

13. Judicial Office : State (chronologically) any judicial offices you have held, including
positions as an administrative law judge, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.

I have not held judicial office.

a. Approximately how many cases have you presided over that have gone to verdict
or judgment?

8

275

i. Of these, approximately what percent were:

jury trials:

%

bench trials:

%

civil proceedings:

%

criminal proceedings:

%

b. Provide citations for alt opinions you have written, including concurrences and
dissents.

c. For each of the 10 most significant cases over which you presided, provide: (1) a
capsule summary of the nature the case; (2) the outcome of the case; (3) the name
and contact information for counsel who had a significant role in the trial of the
case; and (3) the citation of the case (if reported) or the docket number and a copy
of the opinion or judgment (if not reported).

d. For each of the 10 most significant opinions you have written, provide: (1 )
citations for those decisions that were published; (2) a copy of those decisions that
were not published; and (3) the names and contact information for the attorneys
who played a significant role in the case.

e. Provide a list of all cases in which certiorari was requested or granted.

f. Provide a brief summary of and citations for all of your opinions where your
decisions were reversed by a reviewing court or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings. If
any of the opinions listed were not officially reported, provide copies of the
opinions.

g. Provide a description of the number and percentage of your decisions in which
you issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored.

h. Provide citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, provide copies of the opinions.

i. Provide citations to all cases in which you sat by designation on a federal court of
appeals, including a brief summary of any opinions you authored, whether
majority, dissenting, or concurring, and any dissenting opinions you joined.

14. Recusal: If you are or have been a judge, identify the basis by which you have assessed
the necessity or propriety of recusal (If your court employs an "automatic" recusal system
by which you may be recused without your knowledge, please include a general
description of that system.) Provide a list of any cases, motions or matters that have
come before you in which a litigant or party has requested that you recuse yourself due to

9

276

an asserted conflict of interest or in which you have recused yourself sua sponte. Identify
each such case, and for each provide the following information:

I have not served as a judge.

a. whether your recusal was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any other person or interested party; or if you
recused yourself sua sponte;

b. a brief description of the asserted conflict of interest or other ground for recusal;

c. the procedure you followed in determining whether or not to recuse yourself;

d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any
other ground for recusal.

15. Public Office. Political Activities and Affiliations :

a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, state chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.

I have not held public office. I have not had any unsuccessful candidacies for
public office or unsuccessful nominations for appointed office.

b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election committee. If you have ever
held a position or played a role in a political campaign, identify the particulars of
the campaign, including the candidate, dates of the campaign, your title and
responsibilities.

I assisted in my husband’s campaigns for Circuit Judge (2010), Illinois State
Representative (2004 primary), and South Rock Island Township Trustee (2001,
2005, 2009). Specifically, I have worked to promote his candidacies in the
community by going door to door, passing out campaign literature, putting up
yard signs, and working campaign functions. In the course of this work, I have
also supported other Democratic candidates who appeared on the same literature
as my husband. In addition, I have collected signatures for nominations of
candidates. The specific campaigns for which 1 recall undertaking such limited

work are: Dick Durbin for U.S. Senate, Phil Hare for U.S. Representative,
Thomas Kilbride for Illinois Supreme Court, Jeff Boyd for Rock Island County
Sheriff, Patrick Verschoore for Illinois State Representative 72" I 11 District, and

10

various candidates who constituted the Democratic Slate for South Rock Island
Township in 2001 , 2005, and 2009. There may be others I do not recall,

16. Legal Career: Answer each part separately.

a. Describe chronologically your law practice and legal experience after graduation
from law school including:

i . whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;

I did not serve as a clerk to a judge.

ii. whether you practiced alone, and if so, the addresses and dates,

I was never a sole practitioner.

iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.

1997-1998

Law Offices of Clarence Darrow
1515 Fourth Avenue, Suite 200
Rock Island, Illinois 61201
Associate/lntem

1999-2003

Henry County State’s Attorney’s Office

307 West Center Street

Cambridge, Illinois 61238

First Assistant State’s Attorney (2000 - 2003)

Assistant State’s Attorney (1999 - 2000)

2003 - present

United States Attorney’s Office for the Central District of Illinois

1830 2 n<l Avenue, Third Floor

Rock Island, Illinois 61201

Chief, Violent Crimes (2007 - present)

Assistant United States Attorney (2003 - present)

Special Assistant United States Attorney, S.D. Iowa (2003 - present)

iv. whether you served as a mediator or arbitrator in alternative dispute
resolution proceedings and, if so, a description of the 10 most significant
matters with which you were involved in that capacity.

278

I have not served as a mediator or an arbitrator,
b. Describe:

i. the general character of your law practice and indicate by date when its
character has changed over the years.

In 1999, 1 began serving as an Assistant State’s Attorney handling juvenile,
misdemeanor, and felony traffic cases. In 2000, 1 was promoted to First
Assistant and handled felony cases and serious juvenile abuse cases. I
prosecuted a wide variety of state crimes including: gun, burglary, child
exploitation, rape, battery, drug, arson and other offenses. I tried
approximately 20 cases to verdict before a jury and more than 100 cases to
verdict before a judge. In addition to prosecuting cases, I was responsible
for supervising staff attorneys, assigning caseloads, and scheduling jury
trials for the courts. 1 also represented the county in civil matters including
bankruptcy, tax sales and small claims.

In 2003, 1 began serving as an Assistant United States Attorney for the
Central District of Illinois. I have investigated and prosecuted a wide
variety of federal crimes, including drug conspiracy, gun, racketeering,
child exploitation, fraud, bank robbery, and other crimes. In addition to
conducting trials, I am responsible for all aspects of pre-trial litigation
including presentation to the grand jury, preliminary hearings, detention
hearings, suppression hearings, and semencings.

ii. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.

Currently, I represent the Unites States of America. As an Assistant
State’s Attorney, I represented Henry County and the State of Illinois. I
have also served as guardian ad litem in adoption and personal injury
cases involving minors.

As a state prosecutor, I developed a specialty in child exploitation crimes,
handling child pornography, sex crimes against children, and serious
abuse cases. During the time I served Henry County there was an
unfortunate series of child homicides due to abuse. I sought termination
of the offenders’ rights to their remaining children and habitual offender
petitions.

As a federal prosecutor I have specialized in prosecuting violent crimes,
especially those committed by street gangs. I also have the opportunity to
prosecute a wide variety of cases including civilian crimes committed on
the Rock Island Arsenal, fraud, money laundering, and white collar crime.

12

279

c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.

At the United States Attorney’s Office, my appearances are 1 00% in federal court,
occur frequently, and are in all stages of cases, including monthly presentation to
the grand jury, initial prosecution, appeal, and post-conviction litigation. I have
prosecuted approximately 300 defendants, tried ten cases to verdict before a jury,
as well as authored and argued appeals. In addition to criminal matters, I am
asked to provide legal advice on civil forfeiture matters.

At the Henry County State’s Attorney’s Office, my appearances were 95% in
state court, 2% in federal court, and 3% in arbitration. I appeared in court daily
on criminal cases at all stages including filing charges, initial appearances,
detention hearings, preliminary hearings, pre-trial hearings, sentencing hearings
and trials. 1 also appeared in bankruptcy court and in arbitration on behalf of the
county.

i. Indicate the percentage of your practice in:

1 . federal courts: 70%

2. state courts of record: 30%

3. other courts:

4. administrative agencies:

ii. Indicate the percentage of your practice in:

1 . civil proceedings: 5%

2. criminal proceedings: 95%

d. State the number of cases in courts of record, including cases before
administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.

In state court I tried approximately 20 cases to verdict before a jury and over 100
cases to verdict before a judge. 1 was sole counsel in all cases.

In federal court I tried ten cases to verdict before a jury. I was sole counsel in one
trial, lead counsel in six trials, and co-counsel in three trials.

i. What percentage of these trials were:

1. jury: 25%

2. non-jury: 75%

e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any

13

280

c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.

At the United States Attorney’s Office, my appearances are 1 00% in federal court,
occur frequently, and are in all stages of cases, including monthly presentation to
the grand jury, initial prosecution, appeal, and post-conviction litigation. I have
prosecuted approximately 300 defendants, tried ten cases to verdict before a jury,
as well as authored and argued appeals. In addition to criminal matters, I am
asked to provide legal advice on civil forfeiture matters.

At the Henry County State’s Attorney’s Office, my appearances were 95% in
state court, 2% in federal court, and 3% in arbitration. I appeared in court daily
on criminal cases at all stages including filing charges, initial appearances,
detention hearings, preliminary hearings, pre-trial hearings, sentencing hearings
and trials. 1 also appeared in bankruptcy court and in arbitration on behalf of the
county.

i. Indicate the percentage of your practice in:

1 . federal courts: 70%

2. state courts of record: 30%

3. other courts:

4. administrative agencies:

ii. Indicate the percentage of your practice in:

1 . civil proceedings: 5%

2. criminal proceedings: 95%

d. State the number of cases in courts of record, including cases before
administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.

In state court I tried approximately 20 cases to verdict before a jury and over 100
cases to verdict before a judge. 1 was sole counsel in all cases.

In federal court I tried ten cases to verdict before a jury. I was sole counsel in one
trial, lead counsel in six trials, and co-counsel in three trials.

i. What percentage of these trials were:

1. jury: 25%

2. non-jury: 75%

e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any

13

281

oral argument transcripts before the Supreme Court in connection with your
practice,

1 have not practiced before the Supreme Court of the United States.

17. Litigation : Describe the ten (10) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give a capsule summary of
the substance of each case. Identify the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case:

a. the date of representation;

b. the name of the court and the name of the judge or judges before whom the case
was litigated; and

c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.

1. United States v. DeSilva, Jr., 04 CR 40080, Central District of Illinois, U.S. District
Judge Joe Billy McDade, affd 505 F.3d 71 1 (7th Cir. 2007).

Organized Crime Drug Enforcement Task Force Operation Kingpin - For over a decade,
the Latin Kings used violence and intimidation to control the drug trade in the Quad
Cities. The lead defendant, Johnny Joe DeSilva, Jr., was the highest-ranking Latin King
(the Regional Enforcer) in an area that included the Central District of Illinois and the
Southern District of Iowa. His father, and co-defendant, John Joe DeSilva, Sr., lived in
Texas and served as a source of drugs to his son’s operation. DeSilva, Sr. coordinated
shipments of cocaine and marijuana across the Mexican border to Illinois. DeSilva. Jr.
and the Latin Kings engaged in violent gang-related activity to include: attempted
murder, arson and aggravated battery. The investigation and trial presented many
challenges: the DeSilvas threatened to kill and kidnap a federal agent, a lead witness was
murdered, and a juror was the victim of gang-related violence. I handled all stages of the
multi-year investigation and the prosecution. I supervised foreign-language court-
authorized wiretaps, litigated pre-trial motions, served as lead-counsel at DeSilva, Jr.’s
two-week jury trial, argued sentencing hearings, and assisted in preparing the appeal. I
interviewed over 60 witnesses in preparation for trial, many of whom were reluctant
gang-members. I also organized and presented hundreds of trial exhibits and used
automated litigation support to enhance the presentation of evidence at trial. DeSilva was
sentenced to 40 years for convictions of racketeering, conspiracy to distribute drugs, use
of a firearm in furtherance of racketeering, and threats to kidnap and injure.

14

282

Co-counsel at trial: David Risley

United States Attorney’s Office
318 S. Sixth Street
Springfield, IL 62701
(217)492-4450

Opposing Counsel: James Clements for J.J. DeSilva, Jr.

1503 Brady Street
Davenport, IA 52803
(563) 323-9715

David Triemer for J.J. DeSilva, Sr.

601 Brady Street - Suite 21 1
Davenport, IA 52803
(563) 323 : 7889

Jack Dusthimer for J. Garcia-Martinez
1503 Brady Street
Davenport, IA 52803
(563) 323-8344

2. United States v. Landfried, 09 CR 40034, 09 CR 40085, 09 CR 40086, 08 CR 40008,
07 CR 40034, Central District of Illinois, U.S. District Judges Michael M. Mihm and Joe
Billy McDade.

Organized Crime Drug Enforcement Task Force Operation Bluegrass - What began as a
traffic stop in Illinois, wherein 200 pounds of marijuana was seized, quickly evolved into
a multi-agency investigation targeting an international conspiracy involving the supply,
distribution and transportation of thousands of pounds of marijuana. The defendants
were leaders of this large-scale marijuana smuggling organization. Since at least 2002,
the Landfried organization used private aircraft, numerous couriers and a series of safe
houses along the 1-80 corridor to smuggle large quantities of drugs from Mexico to
Pennsylvania. I was sole counsel throughout the investigation and prosecution. To date,
1 9 defendants have been indicted and convicted, including the pilot for the organization.

Opposing Counsel: James Clements for N. Landfried
1 503 Brady Street
Davenport, IA 52803
(563)323-9715

Kevin Kelly for R. Landfried
330 South Third Street, Suite 990
Las Vegas, NV 89101
(702) 385-7270

15

283

George Taseff for C. Mullan
Peoria Assistant Federal Defender
401 Main Street, Suite 1500
Peoria, IL 61602
(309)671-7891

Murray Bell for C. Walker
125 Kirkwood Boulevard
Davenport, IA 52803
(563) 326-4095

Steve Hanna for D. Collins
418 16th Street
Moline, IL 61265
(309) 797-9000

William Loeffei for R. Maruscak, Jr.

139 E Washington Street
East Peoria, IL 6161 1
(309) 694-3196

John Lonergan for F. Berardelli
41 1 Hamilton Boulevard, Suite 1708
Peoria, IL 61602
(309) 673-3939

John Steckel for J. Welling
1600 4lh Avenue, 400
Rock Island, IL 61201
(309) 786-2000

Andrew Larson for H. McKinnon
3610 25 th Avenue, Suite 2
Moline, IL 61265
(309) 757-7500

Donovan Robertson for D. Hannon and J. Seibert
1 00 - 1 7th Street
Rock Island, IL 61201
(309) 795-6217

Chris Dorbandt for A. Ruppel
603 West 1 2* Street
Austin, TX 78701
(512) 407-9700

16

284

Aaron Dyer for C. McGurren
The Law Centre
329 18th Street
Rock Island, IL 61204
(309) 788-2800

Jack Dusthimer for D. Corrigan
1503 Brady Street
Davenport, IA 52803
(563) 323-8344

Ron Hanna Jr. for D. Keitel
411 Hamilton Boulevard, Suite 1908
Peoria, IL 6 ( 602
(309)740-9121

Steve Townsend for P. Preda
564 Forbes Avenue
Pittsburgh, PA 15219
(412) 281-5336

Jeffrey Flanagan for R. Bedalota
411 Hamilton Boulevard
Peoria, IL 61602
(309)671-9701

Hector Lareau for V. Gaydos
2920 1 5th Avenue
Moline, IL 61265
(309) 764-0775

Joel Brown for J.E. White
416 Main Street, Suite 1300
Peoria, IL 61602
Phone: 309-740-7268

3. United Stales v. Lee, 07 CR 40048, 07 CR 40046, Central District of Illinois, U.S.
District Judge Michael M. Mihm.

For over a decade, the Lee family ran a violent, drug-distribution network in a densely
populated neighborhood in Rock Island. In fact, the police were called to what has
become known as “Big Mama’s House,” the headquarters of the operation, more than
300 times. I prosecuted eight members of the family, including the matriarch, known as
“Big Mama,” for conspiring to distribute crack cocaine. Since these violent offenders
have been convicted, the neighborhood has experienced a significant reduction in violent
crime. The impact this investigation had on the community is best described by the

17

285

statements of the Rock Island Police Chief during the demolition of Big Mama’s house.
Chief Wright said, “Today we’re tearing down a nuisance house - on behalf of
appreciative neighbors and every police officer who has dealt with a notorious house on
thetr beat - who wished they could tear it down and give it to the neighbors. For many
years, this house and individuals arrested in this investigation, were very visible signs of
the destruction resulting from crack cocaine and violence.”

Opposing Counsel: Michael Galvin for J.J. Lee
1 800 3rd Avenue
Rock Island, IL 61201
(309)793-1304

G. Trent Marquis foT K. Lee
400 1 6th Street
Rock Island, IL 61201
(309) 786-6329

Steve Hanna for V. Lee
418 16th Street
Moline, IL 61265
(309) 797-9000

John Lonergan for F. Lee
411 Hamilton Boulevard, Suite 1708
Peoria, IL 61602
(309) 673-3939

Chris Kutsunis for A. Lee
1630 5th Ave, Suite 512
Moline, IL 61265, (309) 277-8141

Andrew Larson for H. Villareal
3610 25 th Avenue, Suite 2
Moline, IL 61265
(309) 757-7500

James Clements forK. Lee
1 503 Brady Street
Davenport, IA 52803
(563) 323-9715

Lee Smith for S. Carter
416 Main Street, Sixth Floor
Peoria, IL 61602
(309)674-1025

18

286

4. United States v. Neal, 06 CR 40066, Central District of Illinois, U.S. District Judges
Michael M. Mihm and Joe Billy McDade.

Organized Crime Drug Enforcement Task Force Operation Plowking - William “Tank”
Neal, a General in the Black P-Stones street gang, moved to the Quad Cities in the early
2000s to sell cocaine. Neal recruited several of his fellow gang members to relocate from
Chicago and Wisconsin to the Quad Cities to assist in his drug-distribution business.

Neal also recruited several local residents to help sell drugs. The organization was
responsible for distributing multiple kilograms of crack cocaine each month and was
considered, at the time, to be the largest supplier of cocaine in East Moline, Illinois. I
was sole counsel throughout the investigation, which involved numerous controlled buys,
extensive surveillance, phone analysis, and multiple search warrants. The “take-down”
yielded kilos of cocaine, firearms, and over $100,000 cash. All but one of the 14
defendants pleaded guilty. I was lead counsel in the weeklong trial of Jesse Adams who
was convicted and sentenced to life in prison. This investigation and resulting
prosecutions led to the complete dismantling of the Black P-Stone street gang in East
Moline.

Co-counsel at trial: Gregg Walters

United States Attorney’s Office
21 1 Fulton Street, Suite 400
Peoria, IL 61602
(309) 671-7050

Opposing Counsel: David Treiitier for W. Neal
601 Brady Street - Suite 21 1
Davenport, IA 52803
(563) 323-7889

Murray Bell for M. Gibson
125 Kirkwood Boulevard
Davenport, IA 52803
(563) 326-4095

John Steckel for K. Wilson
1 600 4th Avenue, 400
Rock Island, IL 61201
(309) 786-2000

Donovan Robertson for T. Osbum
100 - 17th Street
Rock Island, IL 61201
(309) 795-6217

19

287

Mark Wertz for A. McPhearson
456 Fulton Street
Peoria, IL 61 602
(309) 676-8986

Geoffrey Campbell for J. Gibson
1 705 2nd Avenue
Rock Island, IL 61201
(309) 788-5297

Andrew Larson for D. Weathers
3610 25"’ Avenue, Suite 2
Moline, IL 61265
(309) 757-7500

Ron Hanna Jr. for E. Scott
411 Hamilton Boulevard, Suite 1908
Peoria, IL 61602
(309)740-9121

Jeffrey Flanagan for J. Weaver
411 Hamilton Boulevard
Peoria, IL 61602
(309)671-9701

Timothy Cusack for M. Brown
PO Box 10461
Peoria, IL 61612
(309) 678-6969

Jack Dusthimer for J. Adams
1503 Brady Street
Davenport, IA 52803
(563) 323-8344

James Clements for J. Keegan
1503 Brady Street
Davenport, 1A 52803
(563)323-9715

Murray Bell for F. Stanley
125 Kirkwood Boulevard
Davenport, IA 52803
(563) 326-4095

20

288

George Taseff for J. McCarthy
Peoria Assistant Federal Defender
401 Main Street, Suite 1 500
Peoria, IL 61602
(309) 671-7891

5. United Slates v. Seefeldt. 04 CR 40080, Central District of Illinois, U.S. District Judge
Michael M. Mihm.

I prosecuted this defendant who fraudulently received benefits, including money and
lodging, by falsely claiming to be a victim of Hurricane Katrina. He led officials at
FEMA and the American Red Cross to believe that he had sustained damage to his
personal property as a result of Hurricane Katrina despite the fact he had not lived in
Biloxi, Mississippi since birth. Seefeldt pleaded guilty and was sentenced to prison for
defrauding the government of thousands of dollars.

Opposing Counsel: George Taseff

Peoria Assistant Federal Defender
401 Main Street, Suite 1500
Peoria, IL 61602
(309) 671-7891

6. United States v. McConaghy, 07 CR 40025, Central District of Illinois, U.S. District
Judge Michael M. Mihm.

McConaghy, using computers at work and home, downloaded child pornography from
the Internet He possessed over 3,000 images depicting identified child victims and
almost 1 ,000 videos depicting identified child victims. I sought, and obtained, sentencing
enhancements due to the very young ages of the victims, the sadistic and maschiocstic
nature of the pornography, and the extreme number of images. McConaghy was
sentenced to 73 months in prison despite having no prior criminal record.

Opposing Counsel: James Mertes

102 East Route 30
Rock Falls, IL 61071
(815)561-4378

7. United Slates v. Carrol , 05 CR 400002, Central District of Illinois, U.S. District Judge
Joe Billy McDade, aff'd 228 Fed.Appx. 605 (7th Cir. 2007).

Operation Rocktown - Lemuel Carrol, a Gangster Disciple, distributed over 47 kilos of
crack cocaine in the Quad Cities over a six-year time period. Carrol eluded prosecution
for drug charges in the past and was “Number 1” on the Rock Island Police Department’s
Top Ten list for years. I led the investigation and indictment of Carrol on a purely
historical drug conspiracy case. I was lead counsel in the four-day jury trial where Carrol
was convicted and sentenced to over 20 years in prison. The trial was particularly

21

289

challenging due to the volume of cooperating defendants as witnesses and the degree of
corroborative evidence presented.

Co-counsel at trial: Matt Cannon

United States Attorney’s Office
1830 2" d Avenue, Third Floor
Rock Island, IL 61201
(309) 793-5884

Opposing Counsel: Murray Bell

125 Kirkwood Boulevard
Davenport, 1A 52803
(563) 326-4095

8. United States v. Darif 04 CR 40047, Central District of Illinois, U.S. District Judge
Joe Billy McDade, affd 446 F.3d 701 (7th Cir. 2006).

Darif, a native of Morocco, paid $3,000 to Dianna, a US citizen, to fly to Morocco, marry
him, and help him obtain a US visa. Despite being complete strangers, Dianna traveled
to Morocco, met Darif with a handshake, married him, and flew back home. After Darif
was indicted, he wrote Dianna threatening letters from jail instructing her to tell the jury
that they were in love and she was crazy, among other things. The defense strategy was
one of love, specifically that this was a valid marriage between two people who fell in
love over the course of three days. I was co-counsel at Darif s trial, which resulted in his
convictions for marriage fraud and witness tampering. I also contributed to the drafting
of the brief on appeal. At trial we were faced with several varied, complex legal issues
including a claim of the marital communications and testimonial privileges, witness
immunity, and contested jury instructions. The resulting appeal and decision is often
cited in marriage fraud cases to define the elements of the offense.

Co-counsel: John Mehochko

United States Attorney’s Office
1830 2 nd Avenue, Third Floor
Rock Island, IL 61201
(309) 793-5884

Opposing Counsel: Raphael Scheetz
1921 51st St NE
Cedar Rapids, IA 52402
(319)378-7416

9. United States v. Meegan, 08 CR 40058, Central District of Illinois, U.S. Magistrate
Judge Thomas J. Shields.

I prosecuted the defendant, the Executive Director of the Moline Housing Authority, who
improperly used her position to authorize and award public housing benefits to

22

290

individuals before they would have otherwise been eligible. Her actions delayed or
denied public housing and housing assistance to other legitimate applicants who were
waiting their turn. Meegan pleaded guilty to falsifying HUD records.

Opposing Counsel: Donovan Robertson
100 - 17th Street
Rock Island, IL 61201
(309) 795-6217

10. United Slates v. Leichty, 04 CR 40102, Central District of Illinois, U.S. District
Judge Joe Billy McDade.

I prosecuted this defendant, who embezzled nearly $800,000 from her employer, the
Quad City Garage Policy Group (QCGPG), over a two and one-half year period. The
QCGPG maintained and serviced the municipal bus fleets for Rock Island County and the
City of Davenport. Due to her position as a Senior Financial Specialist, Leichty was able
to manipulate the accounting computer software to successfully complete a highly-
sophisticated embezzlement scheme. Leichty was also the main contact with the
QCGPG’s accounting firm, and as such, she provided false financial statements and
records during audits. Because of this prosecution, the QCGPG restructured its financial
department and implemented oversight protocols.

Opposing Counsel: Kevin Halligan

5505 Victoria Avenue
Davenport, LA 52807
(563) 344-4900

1 8. Legal Activities : Describe the most significant legal activities you have pursued,

including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organization(s) for whom you performed lobbying activities and describe
the lobbying activities you performed on behalf of such client(s) or organizations(s).
(Note: As to any facts requested in this question, please omil any information protected
by the attorney-client privilege.)

I conduct numerous Grand Jury investigations and present evidence before the Grand
Jury each month. Sometimes the most significant matters do not end with convictions,
years of time in prison, or even charges being filed. As a prosecutor 1 have the enormous
responsibility and burden of prosecutorial discretion. There are many times I could have
charged a target but determined that it was not the right thing to do, or that it was a case
better suited for prosecution in state court. The same goes for deciding who is a witness
and who becomes a defendant.

Since 2007, 1 have been the Violent Crimes Chief for the Central District of Illinois and I
have simultaneously served as our office’s Department of Justice Project Safe
Neighborhoods Coordinator and Anti-Gang Coordinator. Since 2009, 1 have also served

23

291

as the Organized Crime Drug Enforcement Task Force Co-Coordinator. In these
capacities I provide the attorneys and support staff in the district with training regarding
the foregoing violent crime initiatives. I also provide guidance to individual attorneys
regarding their violent crime caseload. I am responsible for implementing DOJ
initiatives throughout the 46 counties the district serves by traveling throughout the
district meeting with local, state and federal law enforcement agencies to promote
partnerships with our office. I also serve as the FBI Gang Task Force Assistant U.S.
Attorney, handling major gang investigations that target rationally known gangs, such as
Ihe Latin Kings and Gangster Disciples.

Rock Island, Illinois, is located directly across the Mississippi River from Davenport,
Iowa. Accordingly, our branch of the United States Attorney’s Office works extensively
with our colleagues and with the magistrate judge presiding in Davenport for the
Southern District of Iowa. Due to the close geographical proximity, our offices and our
federal, state, and local law enforcement partners frequently work together on
investigations and prosecutions. I am designated as a Special Assistant United States
Attorney for the Southern District of Iowa in connection with this work.

I have performed no lobbying activities on behalf of any client or organization.

19. T caching ; What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.

I have not taught courses.

20. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest.

None.

2 1 . Outside Commitments During Court Service ; Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.

For the past few years I have taught on some evenings and weekends during the winter as
a ski instructor at our local ski hill. I plan to continue this employment unless it would in
anyway interfere with my ability to serve as j udge.

22. Sources of Income : List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries.

24

292

fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding $500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1 978, may be substituted here).

See attached Financial Disclosure Report.

23. Statement of Net Worth : Please complete the attached financial net worth statement in
detail (add schedules as called for).

See attached Net Worth Statement.

24. Potential Conflicts of Interest :

a. Identify the family members or other persons, parties, categories of litigation, and
financial anangements that are likely to present potential conflicts-of-interest
when you first assume the position to which you have been nominated. Explain
how you would address any such conflict if it were to arise.

If confirmed, 1 would recuse myself from all cases in which I played any role as
an Assistant United States Attorney. In addition, my father-in-law and my
brother-in-law are attorneys; although they have not generally practiced in federal
court, I would recuse from any case in which they were involved.

b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.

I will handle all matters involving actual or potential conflicts of interest through
the careful and diligent application of the Code of Conduct for United States
Judges as well as other relevant Canons and statutory provisions.

25. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar
Association’s Code of Professional Responsibility calls for “every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving the disadvantaged.’’ Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.

My full-time work since 1999 has been in public service and I have always had a strong
commitment to helping the disadvantaged. After college, 1 dedicated a year to service as
a volunteer for a non-profit organization located in Washington, D.C. I served as a
community organizer and coordinated several low-income housing project tenant
associations by drafting by-laws, supervising meetings, and canvassing for community
support. I also worked with attorneys from the Georgetown Law Center Low-Income
Housing Clinic, as well as local politicians, to negotiate grants from HUD for improved
security and resident programs. In part, it was due to this exposure of how legal
assistance could directly benefit a community that I decided to pursue a legal career.

25

293

I also support the endeavors of Prairie State Legal Services financially and devote time
and money to several programs that serve the community including the local Children’s
Advocacy Center, the Student Hunger Drive, the Child Abuse Council, Alternatives for
the Older Adults, the Boys and Girls Club, and several others.

26. Selection Process :

a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
the interviews in which you participated). Is there a selection commission in your
jurisdiction to recommend candidates for nomination to the federal courts? If so,
please include that process in your description, as well as whether the commission
recommended your nomination. List the dates of all interviews or
communications you had with the White House staff or the Justice Department
regarding this nomination. Do not include any contacts with Federal Bureau of
Investigation personnel concerning your nomination.

Senator Richard J. Durbin established a bipartisan screening committee, chaired
by Mr. James Potter, to evaluate applications for judicial vacancies in the Central
District of Illinois. After submitting an application, on May 19, 2010, 1
interviewed with the screening committee in Peoria on May 26, 2010. The
committee recommended my candidacy, along with others, to Senator Durbin. I
interviewed with Senator Durbin at his Springfield office on May 29, 2010. In
late June 2010, Senator Durbin forwarded my name, along with others, to the
White House for consideration for nomination by the President.

Since July 2, 2010, 1 have been in contact with officials from the Department of
Justice Office of Legal Policy regarding the pre -nomination process. On August
24, 2010, 1 interviewed in Washington, D.C., with attorneys from the White
House Counsel’s Office and the Department of Justice. The President submitted
my nomination to the Senate on November 17, 2010.

b. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any currently pending or specific case, legal issue or question
in a manner that could reasonably be interpreted as seeking any express or
implied assurances concerning your position on such case, issue, or question? If
so, explain fully.

No.

26

294

AO JO

Rev. mOJO

FINANCIAL DISCLOSURE REPORT
NOMINATION FILING

Report Required by ihe Ethks
in Government Aci of 1978
(5 U.S.C. app. §§ tom Jl)

1, Person Rtparllng (list name, first, middle initial)

Dsitow, Sara L.

2- Court or Organization

U.5, District Court for (ho Central DLurict of Illinois

3. Date of llcporl

1 i/17/2010

4. Title (Article HI judges indicate mlivc or senior sums;
magkirnc judges indicate full- or part-lime)

Dtsiricl Judge

Sa. Report Type (check oppropriite type)

| y> | Nomination. Dale i l/IT/2010

| | Initial | | Annual Final

6. Reporting Period

1/1/2009

Is

1 1/5/2010

5b. J | Amended Report

7. Clamber* or Office Address

18 JO 2nd Avenue

Rock Island, Illinois 61201

8- On ihe bcsli of (be Infarmnrloa contained In this Report and any
raodifica iton* pertaining thereto, ti It, In my opinion, in compliance
wifh applicable later and regulations.

Revfevrlne Officer Dale

IMPORTANT NOTES: The instructions accompanying /Jtis form mm/ be followed. Complete all parts,
checking the NONE box for each part where you have no reportable information. Sign on lost page.

I. POSITIONS. t Reporting Mivhtuol only; see pp. 9~U of ‘filing ' tturaciians.)

[V | NONE 0 to reportable positions .)

EQSU1QM NAME OF ORGANIZATION/ENTITY

II. AGREEMENTS . (Reporting intirRtnal only; tttpp. U- 16 e/ filing imrrut/Uins.)
|~/~) NONE (No reportable agreements.)

PATE

295

FINANCIAL DISCLOSURE REPORT

Namecf Person Reporting

Dale of Report

Page 2 of 6

Din-ow, Sara L.

1 in 7/2010

III. non-investment income. (Reporting ipjhidoal axJ spotMt w pp, t?-M ef f!R*g halrxctietu.)

A. Filer’s Non -Investment Income

[■/ 1 NONE (No reportable nan-investment income.)

DATF t SOURCE AND TYPE INCOME

(yours, no! spouse's)

B. Spouse’s Non-Investment Income - i/ f oo»

(Dollar omoiml not rtqti'trtd eicrptfor honoraria.)

□ NONE (No reportable non-investment income .)

DATE

e married taring on/ ponton of the reporting year, comptdi Ihlt stetion.

1. 2010 self employed, attorney

2.2010

Merexr County, IL public defender - salary

1.2010

elected township trustee. South Hock Island Township, Illinois - salary

A 2009

seir employed, auomey

5.2009

Mcrccr County, IL public defender - salary

6.2009

elected township trustee. South Rock Island Township, Illinois - salary

IV. REIMBURSEMENTS

- Iranrporiaiton, lodgixp./ood. entertainment

fine hair i rhatr to jpouic and drpxndroi thildntn; Ire pp. 25-27 of filing iiuimciioruj

□ NONE (No reportable reimbursements.)

SOURCE

MIES

LOCATION

PURPOSE

EXEMPT

296

FINANCIAL DISCLOSURE REPORT

Page 3 of 6

N*me of P«rtn Rt pwiing

Darrow^SaraL.

Date fifRipori

11/17/2010

V. GIFTS. (Inc! min thear to xporac end dependent daUrtaf ur pp. 23-3 1 nf filing (nsl/nellora.)

{ | NONE (No reportable gifts.)

SOURCE

1. EXEMPT

DESCRIPTION

VALUE

3.

VI. LIABILITIES • (Inclmta ihoir of rpotnc end dtpendtnf child* n; aw pp. JJ-JJ tf filing (in true lions.}

|/J NONE (No reportable liabilities.)

CREDITOR DESCRIPTION VALUE CODE

2 .

297

FINANCIAL DISCLOSURE REPORT

NwneofPmoB Reporilhg

1>»U af Report

Page 4 of 6

Dtrrow, Sara L.

1 1/1 7/2010

VII. INVESTMENTS and TRUSTS - 1* ;one, ralur, irmtoc/iom (Includes those of spouse gnu dependent children; secpp. 14-60 of filing ihitntatoni)
) | NONE (No reportable income, assets, or transactions.)

A.

Dracriplkm of Anet*

(iiuKidinglnui assets)

0.

income during
reporting period

C.

Git is value at end
of reporting period

D.

Transactions during reporting period

Place "(X)* after each asset
otcmpi from prior disclosure

0)

Amount
Code 1
(A-H)

{2)

Typefe.*..
drv,rtnl,
or in t.}

m

Value

Code}

{if)

(2)

Value

Muted

Code}

(Q-W)

<i)

Typ«{e.g.
buy, «)!.
rtdernjnfowi)

(2)

Date

mndddiyy

(3)

Value

Code 2
(W)

{«)

Gain

Cod* 1

[A-H)

in

Identity of

buyertse!!er

(ifprivale

transaciiort)

L IRA fl! -Vanguard STAR Fund

B

Dividend

L

T

2. IRA <52

B

Dividend

K

T

3. -Vanguard Init Growth Fund

4, .Vanguard 500 Index Fund

5- -Vanguard Value Index Fund

6. American Bank cod Trust (CDs)

A

Int/Div.

■

T

None

)

T

None

’

T

9. Law Offices of Clarence Harrow, PA

J

W

10. us Govcmmenl Bonds. Series EE

J

T

1 1. American Bank and Trusl checking/savings

A

f merest

J

T

12. Illinois Municipal Reliremenl Fund

None

1

T

13.

14.

■1

IS.

16.

17,

| I.Incoracflw'aCnifcv
(SctCoIttiuu Qi rad Wl
J. Value Codn
(SecCblunuu Cl and DJ)

3. Vnlut MsUisd Coder
|S« Column C2)

A =31,000 arid.

F-Mfl.MI- $100,000
I “515.000 01 Ri!

N k T25ft,OOI - 3300,000
Pi =$25,000,001 .$50,000,000
0 “Appreii»l
U -Hod. Value

B -Jt .001 - 12.500
G=$!a0j00l - $1.000
K - 515,001 - $ 59,000
O -V SCO, DC I - J 1 . 000,000

R "Coil (Rcll ElIMd Orly)
V-OCin

C-n.30l-*J.000

HI -$1,000^01-15.000,000
L -WU06I - 1 100*006
pi =$ i, ooo.ooi -ssm>o,m»
Pa-M^iwt^oco.ooo

D -35.001 -115,000 E-SISJMl -$50000

m-Mare OitnlSOWOOG
M =$160,001 - UJO.OOO
PJ -IJ.ooo.ool .j?3.oo(yK»

T =Cn!i Mirfcrl

298

FINANCIAL DISCLOSURE REPORT

Numeaf Perron Reporting

Dstc of Report

Page 5 of 6

Da mm, Sara L.

n/i7/imo

VIII. ADDITIONAL INFORMATION OR EXPLANATIONS. IJmficBtt pari a] Report.)

FINANCIAL DISCLOSURE REPORT

Nime ct fVnon Reporting

Dvle »I Report

Page 6 of 6

Darro", San L. 1

tim/iota

IX. CERTIFICATION.

! certify that all information given above (inefuding Information pertaining to my spouse aod minor or dependent children, if any) is
accuraU;, true, and complete to the best of my knowledge and beUeT, and that any infornuillon not reported whs withheld tecaoie it met applicable statutory
provisions permitting non-drarkunre.

I further certify that earned income from outride emptoymetu and honoraria and (he acceptance of gifts which have been reported are in
compliance with the provisions of S U5£>>pp.J 501 tt acq-,5 U.S.C. S 7353, and Judicial Conference regulations.

NOTEi ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE SUBJECT TO CIVIL
A ND CRIMINAL SANCTIONS (5 USXT- app- 9 KM)

RUNG INSTRUCTIONS

Mail signed original and 3 additional copies to:

Committee on Financial Disclosure
Administrative Office of ihc United Stales Courts
Suite 2-301

One Columbus Cirde, N.E.

Washington, D.C. 20544

299

Sara Darrow

FINANCIAL STATEMENT
NET WORTH

Provide a complete, current financial net worth statement wh ich itemizes in detail all assets (including bank accounts, real
estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans, and
other financial obligations) of yourself, your spouse, and other immediate members of your household.

300

FINANCIAL STATEMENT
NET WORTH SCHEDULES

Securiti es Held in Retirement Accounts (other than TSP)

Vanguard STAR Fund $ 5 1 ,200

Vanguard Value Index Fund 1 1 ,250

Vanguard 500 Index Fund 29,250

Vanguard International Growth Fund 6,800

Illinois Municipal Retirement Fund cash value 6,456

Total Securities Held in Retirement Accounts 1 04,956

AFFIDAVIT

I, SaraLgi n . Pan'ow, do swear that the information provided in this statement is, to the best of
my knowledge, true and accurate.

1 1 -15'- IQ

(DATE)

WQ/U.3EAL
WILLIAM M, WALKER
flOTARV puauc - 8TAT£ Of lUJNOIS
MY COMMISSION eXPI«E8 J-U-B1J

301

Sara L, Darrow

January 5, 2011

The Honorable Patrick J. Leahy
Chairman

Committee on the Judiciary
United States Senate
Washington, DC 205 1 0

Dear Mr. Chairman:

1 have reviewed the Senate Questionnaire I previously filed in connection with my nomination on
November 17, 2010, to be United States District Judge for the Central District of Illinois. I
certify that the information contained in that document is, to the best of my knowledge, true and
accurate.

1 also am forwarding an updated Net Worth Statement and Financial Disclosure Report as
requested in the Questionnaire. 1 thank the Committee for its consideration of my nomination.

Sincerely.

cc:

The Honorable Charles Grassley
Ranking Member
Committee on the Judiciary
United States Senate

Washington, DC 205 1 0

AO 10

ktv. !f2<m

302

FINANCIAL DISCLOSURE REPORT
NOMINATION FILING

Repots Required by the Ethics
in Government Act of !V?tt
(5 USJC.tifip.Sf lOl-IU)

1. Pctw Reporting (lw me. first. middle iniiil)

Darrow.Saro L.

X Coon or Orj»r.ti*«ion

Lf-S. Dishici Court foe the Central District of Illinois

X URi of Rcf-ori

li.VJftJ 1

4. Title t A (tide HI judge* indicate actrms or sector *iatu»;
magistrate jixfjps indicate fell- or pan-iirae)

District Judge

5 a Report Type (cheek spproprfare type)

Jg N&minilioo. Dale 1/5/2011

| | Iriii*) j~ j Anna*! ~~j Flail

6. Repelling Period

1 / 1/2010

itw Q AotenW Report

7. Osrnbera cr OfIke A

Ifl-lfl lnd Avenue
Rock Island, Illinois 51201

9, On <tx bojjj of Ur Inrormatkon contained in thU Report ukJ any
ntadUleMlera pertrintaj Hiirato, li a. In tny opinion, in compliance
with epfJkitdi Umind rrjulatlou

R**k*»tng tXTkir_

IMPORTANT NOTES! The iruirucdiont accompanying this form must be fallowed. Complete all parts,
checking the HOSE box for each pari where you hare no reportable inf Demotion. Sign an last page.

I. POSITIONS . (Reporting imti "Alai out/; m pp. 9*1 J of filing mumehons, J
•/ I NONE (Wo reportable positions.)

POSITION NAME OF ORGANIZAUON/ENTrTV

II. AGREF.MENTS . (Reporting individual only; u* pp, l*~tS of filing mttnuioni.)
| >/ 1 N ONE f No reportable agreements.)

PATE

303

FINANCIAL DISCLOSURE REPORT

Name af Prrtioo Rrp^rl'mg

D»W of Report

Page 2 of 6

Dsrrow, Sara L.

1/5/20H

III. NON-INVESTMENT INCOME , (Ripening indbittuai and cpa>ue: tet pp, 17-24 af Jitifig inslrucria/M-)

A. Filer's Non-Investment Income

[✓ ] NONE (No reportable non-investment Income .)

DAIE

INCOME

(yours, rtoc spouse's)

B. Spouse's Non-Investment Income - Ifyoa *trr atarned during any portion of lltr nporting ytar, asmpUbt Ihit irrtfon.
< Dollar mantra KiM ruga vtd litctpl for horumiria)

\ | NON E (No reportable non-investment income .)

DATE

SOURCE AND TYPF.

1.2010

Slate of Illinois, circuit court judge ■ salary

2. 20(0

self employed, attorney

.1.2010

Mercer County. It, public defender - salary

4.2010

elected township trustee. Sooth Rncfc (stand Township. Illinois - salary

IV. REIMBURSEMENTS — irBrupartolion, lodging jaod, enunoiamrnl.

thtciudn fhktt to tfintnt ooJ JeponJe/n cfuUren: «r f>p. 73-17 of filing inmnetiont .i

1 | NON E(No reportable reimbursements .)

SOURCE DATES LOCATION

PURPOSE

1 . Exempt

304

FINANCIAL DISCLOSURE REPORT

Pfur* of Person Kcportmg

Date at Report

Page 3 of 6

Dflrrow,Sara L, |

1

1/5/ZOII

V. GIFTS i (Indadei those a spouse and dependent children; set pp. 28-3 1 of filing Ini inictfojtsJ

[ 1 N ON £ (No reportable gifts J

SOURCE DESCRIPTION VALUE

t. £»empi

2 .

4.

VI. LIABILITIES 4 (I 'itckukr rtune of ryoun tout dependent children: let pp. 32-23 of filing Ittitnieiiens,)
[✓] NONE (No reportable liabilities .)

305

FINANCIAL DISCLOSURE REPORT

Name uf Person R«f*sn(ti|

n»l* of Rrporl

Page 4 of 6

Dan-ow.Sara L.

1/5001 1

VII. INVESTMENTS and TRUSTS — nuomt, whir, imntacliotn { IncluJts Ihoie of jpoawt and dtptndrni childrtn; at pp. 34-60 of fihng inanctionwj
1 | NONE ( No reportable income, assets, or transactions.)

A.

Description of Aueri
(including Iran aueu)

B.

Incowe dating
reponiag period

C

Grata value at end of !
reporting period

D.

Transactions during reporting period

. <•>

<«

. (I)

(2) j

(1)

<2>

(3) ; {•»>

(5)

Ham 1 X>' s/tfi eat* u«a

Amount

Typ*l*-R-

Value

. Value j

Type (e g..

i Dale

Value Cain

Idemily of

eiempt from prior disclosure

C<*U I

dir., mi.

Code!

Method j

bay. tell.

. MoiuA-

Code 2 Code 1

bay cri seller

(AH) '

mint.)

UP) Code 3 j

(QW) j

redemption)

Day

U-P) (A-H)

(if private

iransKtPcw)

1. IKA #1 -Vanguard STAR Fund

3

Dividend

1.

T

2. IRA 12

B

Dividend

K

T

3. -Vanguard Inti Growth Fund

4. -Vanguard 500 Index Fund

■bhh

■

A

Int/Div.

K

T

7. Illinois Bright Stan 529 Plan (agc'risk based
portfolio)

None

J

T

8. College Savings lows 529 Plan (ageYick ha
sed portfolio)

J

T

J

W

10. US Government Bonds. Scries EE

None

.

J

T

11. A mefican Bank and T rust chccki ng/ra vinp

A

Interest

J

T

12. Illinois Municipal Retirement Fund

None

J

T

13.

14.

IS.

16.

17.

I Insane Gua C<*Jer
|Sf* Cnlamw BI and D*)
Vilit CnJet

(See Ci4unw*Ct imJ D?>

* »*!.«« ■*!«•*

p«ls(.rm.HMv/v«

jrjlimir )oa
MoIBn^ni .ISIUM

n isissman - ssuwmui

U »Bu*k Valiu

J2.S«»

G -liravjni luntflU
K=iiuu> -Mo non
o=s*tM>n -v.twyro

R d>i (Real E>uic Oal) }
VsOkai

c xJUnl - i5/»»>

Hi ailjmni -

L*4SU«»

pi -Sl.uauail .ivr>i<nn
M -M,« ilaa i&HIVtii
S a-AMft'intni

P ■ HJ.non E =sijjmi - Wiftli

m«Moa dun H.WMW
-*22 wm

Pi --is/momt .lasmvnt

v a |„e Malta JOJ»N

<S<«CnIvlnnC3t

T aCilB Mil* Cl

306

FINANCIAL DISCLOSURE REPORT

Nome of Person Report eg

Date of Report

Page 5 of 6

Darrow.Sara L.

1 / 5(201 1

VIII. ADDITIONAL INFORMATION OR EXPLANATIONS . (tnduraJt pari of Report^

FINANCIAL DISCLOSURE REPORT

Nome *f Previn Reporting

Diie of Report

Page 6 of 6

Darrow, Sam L-

imou

IX. CERTIFICATION.

I certify that all [nforniatiaa given above (including information pertaining to my apousc and minor or dependent children, if any) «
accurate, true, and complete to the host of my knowledge and belief, Bed that any information not repaired m> withheld bectuite it met applicable statutory
provision* permitting non-dforfowirc.

I further rertify that earned income from ootride employment and honoraria ond the acceptance of gift* which have been reported are in
compliance with the provisions of 5 U.S-C. «pp. 5 SOI el. mp, 5 UJS.C. fi 7JSJ, and Judicial Conference regulation*.

NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE SUBJECT TO CIVIL
AND CRIMINAL SANCTIONS (S US-C.app. * 10-fl

FILING INSTRUCTIONS

Mail signed original anti 3 additional copies to:

Committee on Financial Disclosure
Administrative Office of ihc United States Courts
Suite 2-301

One Columbus Circle, N.E.

Washington. D.C. 205*14

307

Sara Darrow

FINANCIAL STATEMENT
NET WORTH

Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank accounts, real
estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans, and
other financial obligations) of yourself, your spouse, and other immediate members of your household.

308

FINANCIAL STATEMENT
NET WORTH SCHEDULES

Securities Held in Retirement Accounts father than TSP)

Vanguard STAR Fund $ 5 1 ,700

Vanguard Value Index Fund 11,650

Vanguard 500 Index Fund 3 1,1 50

Vanguard International Growth Fund 6,800

Illinois Municipal Retirement Fund cash value 6,456

Total Securities Held in Retirement Accounts 1 07,756

309

Judge Ramos, over the last 10 years, you have presided over
1,200 criminal, civil, and family law cases that went to verdict or
judgment, and yet only eight of those cases have been reversed.
That is less than 1 percent of the cases that you have presided
over. It is a pretty impressive rate.

How has your work in the 347th district court for Nueces County
prepared you to serve as a District Judge for the southern district
of Texas?

Judge Ramos. Thank you, Senator. As you said, for the last 10
years, I’ve had the privilege of serving as a district court judge in
a court of general jurisdiction. So I’ve presided over both criminal
and civil cases, and I think that judicial experience will benefit me
greatly, if I am confirmed, as a district court judge.

Thank you.

Senator Franken. Thank you.

Judge Jackson, a little over 10 years ago, you presided over a
sexual assault case involving a 28-year-old man named Charles
Brooks, who sexually assaulted a 12-year-old victim.

I understand he entered what is called an Alford plea, where he
accepted the charge, but asserted innocence. You initially sen-
tenced Mr. Brooks to 10 years in prison.

Judge Jackson, you subsequently reduced Mr. Brooks’ sentence
down to a 2-year jail term plus 10 years probation.

When the Rocky Mountain News ran a story criticizing your deci-
sion, you wrote a letter to the editor defending it. You said that the
victim was not raped, although there was, quote, “inappropriate be-
havior and touching.” This is very unusual for a judge to write such
a letter.

My understanding, Judge Jackson, is that a lot of people were
very concerned about how you handled the case, and, to be honest,
I am concerned about it, too.

Can you tell us about the case and why you made the decision
that you did?

Judge Jackson. Yes, I can and I thank you for the opportunity
to do that.

Senator, as you might expect, sex offense cases are among the
most difficult that we have and certainly the most victim-sensitive.
And this case happened to be, I think, the first case of that kind
that I had had as a judge, but I did sentence Charles Brooks to 10
years in prison because I thought that was exactly what he de-
served.

Something happened in that case that is unique to all the sex of-
fenses cases I have had, and I think I have had 300 or 400 prob-
ably in my career by now.

Brooks was in prison, but Brooks only communicates through
sign interpreters. He is hearing impaired and needs an interpreter
to communicate.

In addition to that, he has mental health issues. But the main
thing was the speech difficulty, hearing difficulty, and I was told
that he was not getting any offense-specific treatment, any sex of-
fense treatment in prison; not a knock on the prison, but just a
combination of resources and the lack of interpreters.

I was concerned, Senator, about the community safety aspect of
that, because 10 years or not, he was going to come out of the pris-

310

on and be back in the community. And it was extremely important,
it was emphasized by our probation department how critical it was
that he get treatment.

And so I agreed to a proposal that was made to me to bring him
back to our local jail, to incarcerate him for the maximum term
possible, but to get him the offense-specific treatment with inter-
pretation that everyone thought he needed.

I agreed to that on the condition that he successfully complete
the treatment program and that if he made it onto probation, that
he be absolutely without any type of violation, zero tolerance.

In fact, Mr. Brooks did reasonably well, quite well in treatment
and he served his jail sentence, but very shortly after he completed
the jail sentence, he was dismissed from the treatment program
not because he wasn’t complying, but because he would not admit
his crime.

He, as you said, entered an Alford plea and he, from the begin-
ning to the end, denied that he was guilty. And you cannot com-
plete offense-specific treatment in Colorado unless you admit.

That was a violation of his probation and I did exactly what I
said I would do. I revoked his probation, put him back in prison,
and he served out his 10-year sentence.

And, Senator, if I can add, I’m proud to say that the district at-
torney, who was the DA at the time, who brought the case, the
deputy district attorney who actually prosecuted the case, the dis-
trict attorney in our jurisdiction who is there today and his chief
deputies, all of those support me for this position, as Senator Udall
said, to the Attorney General of the state and the U.S. attorney,
and I think they based that on 12 years of how I’ve handled cases
like this.

As far as the newspaper, I think that was a poor decision, sir.
It was frustrating to me as a new judge to see a case described in
the paper that I didn’t think was describing the case that I had or
the reasons why I did what I did.

I think it probably is not a good idea for a judge to write a letter
like that. Sometimes you learn these things the hard way.

But I will say, for what little it might be worth, that the reporter
who wrote the article followed my career on the bench for several
years after that and she is one of the letters of support that you
have in that volume that Senator Udall presented.

It doesn’t mean I did the right thing on the letter. I shouldn’t
have done it. I made a mistake and I learned from it.

Senator Franken. Thank you.

Judge Jackson. Thank you, Senator.

Senator Franken. Thank you, Judge.

Senator Durbin.

Senator Durbin. Thank you, Chairman Franken. I will get him
back on our side, I promise.

[Laughter.]

Senator Durbin. There is one thing I did not mention when I in-
troduced Ms. Darrow to the Judiciary Committee, and, that is,
what a positive impression she made on me when I interviewed
her.

I certainly knew her father. I know her father-in-law, I have
known him for years, a close friend of mine, and I had learned

311

quite a bit about her background as a prosecutor and legal practice.
And as you can see from the biographical material, she has had a
14-year legal career.

And what you may recall is when she introduced her children,
all six of them, but the oldest is 14, how this woman has been able
to balance this amazing professional career with this beautiful fam-
ily is nothing short of a miracle.

Senator Franken. Hence, the “wow.”

[Laughter.]

Senator Durbin. And so I was so impressed and still am and I
am sure glad that you are here. And I do not have any questions,
because if I did, I would not have brought you here. But I am glad
that you have had an opportunity to come to this hearing.

Ms. Darrow. Thank you, Senator.

I would like to ask the other two nominees, if I might, a few
questions.

Judge Ramos, I am impressed with your career.

Judge Ramos. Thank you, Senator.

Senator Durbin. It is an extraordinary career. It is primarily ori-
ented toward civil litigation. I think you have said as much in re-
sponding to questions. And I think you understand that if this is
like most Federal district courts, you are going to have a lot of
criminal practice before you.

Tell me how you would explain to the members of the Committee
that you will be prepared for that seismic shift in your practice.

Judge Ramos. Thank you, Senator. When I was in private prac-
tice, my practice was a civil practice. But since I’ve been on the
bench for the last 10 years, I’m in a court of general jurisdiction.
So it is — I preside over civil and criminal cases and I

Senator Durbin. What percentage would you say it is?

Judge Ramos. I’ve tried over 100 jury trials in civil cases — felony
cases. So I think that experience will carry over.

Senator Durbin. Criminal felony.

Judge Ramos. Criminal felony, yes, sir.

Senator Durbin. I see. Well, that certainly is adequate for that,
more than adequate for that.

Judge Ramos. Thank you, Senator.

Senator Durbin. And I also notice your pride in your own herit-
age and the opportunities that this country has brought you. You
live in a state which the last census indicates has a dramatic up-
surge in the Hispanic population, maybe the largest in the nation,
I am not sure, but close, if not the largest.

And there are always questions of justice related to newcomers
to America. Tell me how you would balance that in a courtroom,
dealing with the law and the reality of what life is like for new-
comers to America.

Judge Ramos. Right. Similar to what I think as a judge, you
should treat all persons equally regardless of who they are or
where they come from, and I have done that for the last 10 years.
I do think it’s important for a judge to certainly understand where
people come from, the situation they find themselves in, and how
your rulings may affect their lives.

However, sympathy, a judge should not allow sympathy to play
any role in a judge’s decisions. So I think I have treated everyone

312

who has come before my court with respect and equality for the
last 10 years and I would continue to do that.

Thank you.

Senator Durbin. Judge Jackson, I read the same case that Sen-
ator Franken asked about and I am sure, across your judicial ca-
reer, it is probably one of the more controversial decisions you have
ever been engaged in.

And I noted your acknowledgment that you may have made a
mistake in sending a letter to the newspaper. As hard as it may
be to believe, occasionally, Senators make mistakes and I am one
of them.

Judge Jackson. Well, thank you for that.

Senator Durbin. I think what really many of us struggle with
who have never had to face your responsibility in trying to decide
the appropriate sentence for someone accused of a sex crime is kind
of this haunting question about whether rehabilitation is even pos-
sible in this situation.

We hear so many cases of repeat offenders with sex crimes. Now,
you have said that it has been your experience, that you have had
several hundred of these offenders before you, and I would just like
to ask you if you could comment on that experience and what you
can bring to us in terms of our understanding of these criminal de-
fendants.

Judge Jackson. Yes. Thank you for that question, Senator. Our
law changed in 1998 and now we have what is called a Lifetime
Supervision of Sex Offenders Act, and for certain classes of sex of-
fense felonies, we are required to sentence from a minimum to life.
But that same law from our legislature says that the presumption
is that a sex offender will always be a sex offender, but with treat-
ment, some can be released to the community.

We have a sex offense management board, we have parole boards
who make decisions on which of these people can be released, and
there have been a number now who have been sentenced to life
sentences who actually have been released back into the commu-
nity.

It really is a product of do they get treatment, do they respond
to the treatment, what is their criminal history. For example, in
the case that I had that’s been the subject of discussion, this gen-
tleman had not only not had a prior sex offense, but had not any
prior felonies or significant offenses at all. Someone like that I
think is more treatable perhaps.

Can I tell you, sir, that with treatment, someone is no risk any-
more? Absolutely I cannot. What I can tell you is that if they get
treatment and do well, and, of course, they register as sex offenders
and there are a number of other things that apply to them, that
when they come back into the community, we’re a much safer com-
munity than we would have been had they not gone through that
treatment.

Senator Durbin. Did I understand your testimony that this indi-
vidual, once brought back for local incarceration and this offender
treatment program, when he would not admit his guilt, was re-in-
carcerated? So he was never released to the public.

Judge Jackson. That is correct. He — that is almost correct. He
was released on probation from the conclusion of his jail sentence

313

for a period of — I’m trying to remember — I would say 2 or 3
months, but that’s when his treatment program was terminated
and that’s why I put him back in prison to serve out his sentence.

Senator Durbin. I see.

Ms. Darrow, you made a long trip out here, so I am going to ask
you one thing about your background, if I might. And that is, you
were involved in a pretty significant prosecution of drug gangs in
the Quad Cities area, the Rock Island area there.

Could you tell us a little bit about your lead in these gang inves-
tigations and prosecutions?

Ms. Darrow. Yes. Thank you, Senator. I think you’re referring
to my prosecution of the Latin Kings street gang. At the time, they
were the largest supplier of drugs in the East Molina area, which
is one of the main cities in my jurisdiction.

And they were — we prosecuted the local leader of the street gang,
as well as his underlings, and we went all the way back to the
source of supply, which was in Texas.

It was a racketeering prosecution, which is a little bit more com-
plex than a straightforward drug prosecution or otherwise violent
crime prosecution, and I am happy to say that at the end of that
prosecution, local law enforcement agreed that the presence of that
street gang at that time had been dismantled.

Senator Durbin. I am hoping that testimony will clearly win
over Chairman Franken. And I yield.

Senator Franken. Thank you, Senator Durblin.

[Laughter.]

Senator Franken. And thank you, Judge Ramos and Judge Jack-
son and Ms. Darrow, for your testimony. And you are welcome to
stay there. We are about to wrap up here, so hang in.

In closing, I want to thank my friend, the Ranking Member, and
I want to thank each of you for your testimony today.

We will hold the record open for 1 week for submission of ques-
tions for the nominees and other materials.

This hearing is adjourned.

[Whereupon, at 4:29 p.m., the hearing was adjourned.]

[Questions and answers and submissions for the record follow.]

314

QUESTIONS AND ANSWERS

Responses of Sara L. Darrow

Nominee to be United States District Judge for the Central District of Illinois
to the Written Questions of Senator Charles Grassley

1. Other than a very brief time in a small private practice, you have spent your entire
career working on criminal matters. If confirmed, how will you prepare yourself to
handle the variety of other legal issues that a district judge confronts?

Response: As a federal prosecutor I have a firm grasp of federal rules and procedure. I
would build upon my experience and work hard to get up to speed in the different areas
of law that come before a district judge. I will utilize the numerous resources available
from the Federal Judicial Center and attend continuing legal education courses for district
court judges. 1 will also consult with the other district judges for guidance. Above all, if
confirmed, I will work diligently to prepare for the legal and procedural aspects of each
case that would come before me.

2. Do you believe that our federal government is one of limited and enumerated
powers?

Response: Yes.

3. Do you believe it is proper for a judge, consistent with governing precedent, to strike
down an act of Congress that it deems unconstitutional? If so, under what
circumstances?

Response: Yes. It is appropriate for a federal court to declare all or part of a statute
unconstitutional if Congress has exceeded its constitutional authority.

4. What is the most important attribute of a judge, and do you possess it?

Response: I believe that the most important attribute of a judge is an ability to apply the
law to the facts in a fair and impartial manner. I believe that 1 possess that quality.

5. Please explain your view of the appropriate temperament of a judge. What
elements of judicial temperament do you consider the most important, and do you
meet that standard?

Response: I believe a judge must treat all who enter the courtroom with dignity and
respect, be courteous and patient when considering the arguments presented, and be firm
in applying the law to the facts of the case. I believe that I meet each of these standards.

6. In general, Supreme Court precedents are binding on all lower federal courts and
Circuit Court precedents are binding on the district courts within the particular
circuit. Are you committed to following the precedents of higher courts faithfully

315

and giving them full force and effect, even if you personally disagree with such
precedents?

Response: Yes.

7. At times, judges are faced with cases of first impression. If there were no controlling
precedent that dispositively concluded an issue with which you were presented, to
what sources would you turn for persuasive authority? What principles will guide
you, or what methods will you employ, in deciding cases of first impression?

Response: In the absence of controlling precedent, I would review decisions from the
Supreme Court, the Seventh Circuit, and other federal courts that have addressed an
analogous issue. I would also look to the text of any applicable statutes and consider
legislative purpose.

8. What would you do if you believed the Supreme Court or the Court of Appeals had
seriously erred in rendering a decision? Would you apply that decision or would
you use your own judgment of the merits, or your best judgment of the merits?

Response: The role of a district court judge is to apply the law as defined by the Supreme
Court or the Court of Appeals to the case presented. 1 would employ that duty regardless
of my own judgments of the merits.

9. As you know, the federal courts are facing enormous pressures as their caseload
mounts. If confirmed, how do you intend to manage your caseload?

Response: I would set regular status conferences, enforce reasonable and stringent
deadlines, and decide matters expeditiously.

10. Do you believe that judges have a role in controlling the pace and conduct of
litigation and, if confirmed, what specific steps would you take to control your
docket?

Response: Yes, judges have an important role in controlling the pace and conduct of
litigation. If confirmed, I will work hard to ensure prompt resolution of cases while
affording each litigant a full and fair hearing.

11. Under what circumstances do you believe it appropriate for a federal court to
declare a statute enacted by Congress unconstitutional?

Response: It is appropriate for a federal court to declare all or part of a statute
unconstitutional if Congress has exceeded its constitutional authority.

12. Please describe with particularity the process by which these questions were
answered.

2

316

Response: I reviewed and carefully considered each question and answer. 1 discussed
some of my responses with a Justice Department representative, finalized my answers,
and authorized their communication to the Committee.

13. Do these answers reflect your true and personal views?

Response: Yes.

3

317

Responses of Henry F. Floyd

Nominee to be United States Circuit Judge for the Fourth Circuit
to the Written Questions of Senator Charles Grassley

1. In your Padilla decision, you discussed your attempt to avoid judicial activism. How
do you define that term?

Response: Judicial activism occurs when judges venture outside of the applicable law and
allow other factors, such as personal policy and political preferences, to influence their
decisions.

2. In that case, you discussed “other matters and concerns” which did not appear to be
relevant to the case. You also seemed to modify the meaning of the Non-Detention
Act by requiring a specific, rather than a general, authorization of detention.

You wrote: “In clear and unambiguous language, the Non-Detention Act forbids any
kind of detention of any United States citizen except that w hich is specifically allowed
by Congress.” Padilla , 389 F. Supp. 2d at 688 (emphasis added). Although you
claimed you were applying the plain language of the statute, when you described it,
you inserted the words “that which is specifically.”

a. Would you consider your discussion of “other matters and concerns” an
example of judicial activism? Why or why not?

Response: No, I do not consider this discussion to be an example of judicial
activism because l was addressing arguments made by the litigants and not
imposing my own policy or political preferences. Under the section of the
opinion titled “Other matters and concerns," 1 addressed compelling arguments
contained in the briefs that I had not earlier addressed because they did not fit
organizationally. Nevertheless, 1 thought that it was important that 1 discuss the
arguments so that it was obvious to the litigants and those reviewing my order that
I had considered them. Inasmuch as 1 declared my holding in the sentence
immediately preceding this section, and none of what 1 wrote in this section was a
necessary part of the reason for my decision, this section is dicta.

b. Would you consider your description of the statute and your inclusion of the
words “that which is specifically,” to be an example of judicial activism?

Why or why not?

Response: No, I do not consider this discussion to be an example of judicial
activism because my statutory interpretation of the Non-Detention Act informed
my decision, not my personal preferences. As I stated in Padilla, “This Court sits
to interpret the law as it is and not as the Court might wish it to be.” Padilla v.
Hanft , 389 F. Supp. 2d 678, 691 (D.S.C. 2005). Section 4001(a) of Title 18 of the
United States Code states the following: “No citizen shall be imprisoned or
otherwise detained by the United States except pursuant to an Aet of Congress.”

318

When I wrote this opinion, it was my judgment that Respondent was asking me to
go beyond what the statute allowed. Thus, my inclusion of the term “that which
is specifically” to modify “an Act of Congress” was meant to elucidate that I was
strictly construing what I interpreted the terms of the statute to be.

3. Do you believe that our federal government is one of limited and enumerated powers?

Response: Yes.

4 . What does the concept of separation of powers mean for the federal courts? If
confirmed, will this be a governing principle which you will follow?

Response: Federal eourts are assigned a circumscribed role in our constitutional structure.
Article III limits the power of the federal courts to resolving cases and controversies. The
concept of separation of powers reflects this limited role of the federal courts. It requires
that federal courts confine their decisions to resolving the narrow issues presented in the
cases or controversies before them and not to exercise powers ascribed to another branch.

If confirmed, I will follow this governing principle.

5. Do you believe it is proper for a judge, consistent with governing precedent, to strike
down an act of Congress that it deems unconstitutional? If so, under what
circumstances, and applying what factors?

Response: Yes. Judges, however, should presume that acts of Congress are valid and
“invalidate a congressional enactment only upon a plain showing that Congress has
exceeded its constitutional bounds.” United States v. Morrison , 529 U.S. 598, 607 (2000).
In determining whether to strike down a congressional statute as unconstitutional, judges
must consider the applicable factors set forth in Supreme Court and other binding
precedent.

6. What is the most important attribute of a judge, and do you possess it?

Response: The most important attribute of a judge is independence. Independence allows a
judge to resolve cases and controversies impartially and to apply the written law faithfully
notwithstanding societal pressures. The independence of the judiciary is critical to the rule
of law. I possess independence, which my record as a jurist reflects.

7. Please explain your view of the appropriate temperament of a judge. What elements
of judicial temperament do you consider the most important, and do you meet that
standard?

Response: Judges should be calm, patient, courteous, and respectful in their interactions
with all litigants and attorneys. Such temperament is necessary to reflect the impartiality of
the court and to allow for the effective resolution of cases. Judges must also exercise great
discretion outside of the courtroom to protect society’s perception of the judiciary as an
independent arbiter of disputes. 1 meet this standard.

319

8. In general, Supreme Court precedents are binding on all lower federal courts and
Circuit Court precedents are binding on the district courts within the particular
circuit. Are you committed to following the precedents of higher courts faithfully and
giving them full force and effect, even if you personally disagree with such
precedents?

Response: Yes.

9. At times, judges are faced with cases of first impression. If there were no controlling
precedent that dispositively concluded an issue with which you were presented, to
what sources would you turn for persuasive authority? What principles will guide
you, or what methods will you employ, in deciding cases of first impression?

Response: If confronted by a case of first impression, my starting point would be the text
of the particular statute, regulation, or constitutional provision at issue. If the text is clear, I
will simply apply the provision as written. If it is unclear and no binding precedent exists, I
will look for guidance from nondispositive Supreme Court and Fourth Circuit precedent
and decisions rendered by other circuit courts. The principles and methods gleaned from
these decisions will guide me in deciding cases of first impression.

10. What would you do if you believed the Supreme Court or the Court of Appeals had
seriously erred in rendering a decision? Would you apply that decision or would you
use your own judgment of the merits, or your best judgment of the merits?

Response: I would faithfully apply all binding precedent regardless of whether I personally
disagreed with the decision.

11. Under what circumstances, if any, do you believe an appellate court should overturn
precedent within the circuit? What factors would you consider in reaching this
decision?

Response: In the Fourth Circuit, one panel lacks the authority to overturn or depart from
the holding of another panel. United Stales v. Guglielmi , 819 F.2d 451, 457 (4th Cir.

1987). Only the court sitting cn banc may do so. Id. Accordingly, 1 would decline to
overturn or depart from a prior panel’s decision unless the court was rehearing the case en
banc. Furthermore, I will generally disfavor hearing a case en banc unless “en banc
consideration is necessary to secure or maintain uniformity of the court’s decisions” or the
case involves a “question of exceptional importance.” Fed. R. App. P. 35(a).

12. Please describe with particularity the process by which these questions were
answered.

Response: I dratted the answers to these questions and asked the U.S. Department of
Justice to submit them on my behalf.

13. Do these answers reflect your true and personal views?

Response: Yes.

320

Responses of Richard B. Jackson

Nominee to be United States District Judge for the District of Colorado
to the Written Questions of Senator Charles Grassley

1. Vou have participated in two different three-judge panels to determine whether the
death penalty was appropriate. In both instances, the panel unanimously concluded
that the death penalty was not appropriate. I recognize that in one of them, People v.
Page , you criticized the panel’s reasoning and said that while the decision is the
most difficult that a judge has to make, it is “part of our criminal law and it’s the
responsibility of judges to impose the sentence on appropriate cases.”

a. Is there any doubt in your mind that the death penalty is constitutional?

Response: No.

b. Do you have any personal views that would prevent you from applying the
death penalty, if confirmed?

Response: No.

c. In People v. Page, you wrote that although you had felt that “Page deserves
the death penalty,” you were unable to conclude beyond a reasonable doubt
that the death penalty was appropriate. Please explain the reasoning for
your conclusion in that case.

Response: The three judges on the panel (the judge who presided during the guilt
phase of the trial plus two others, including me, who were randomly selected)
agreed that aggravating factors outweighed mitigating factors, making Page
eligible for the death penalty. Although all of us concluded that the death penalty
was not appropriate in this case, our reasoning in reaching that conclusion
diverged. The majority contrasted Page’s crime, which was described as an
impulsive reaction to his being surprised by the unexpected arrival of the
homeowner during a burglary, with prior Colorado death penalty cases, caeh of
which involved premeditation. The majority concluded that, based upon
“evolving standards of decency,” imposing the death penalty in this case would
“lower the bar for executions in the State of Colorado, a precedent that we feel
would be inconsistent with what we perceive to be the state-community’s
disposition to impose the death penalty only in the most egregious and extreme
cases.” I disagreed and concluded in a concurring opinion that the crime was
sufficiently heinous to deserve the death penalty, and that the majority’s analysis
could effectively create a premeditation requirement for the use of the death
penalty.

My conclusion that the death penalty was inappropriate primarily focused on the
requirement in Colorado law that death penalty sentencing panels consider factors
such as the history and characteristics of the defendant, which led me to consider

321

whether Page had a brain injury that affected his ability to control impulsive
behavior. There was PET scan evidence that a neuroscientist interpreted as
indicating such brain damage. As the majority opinion states, “[t]he brain
dysfunction testimony raises a reasonable doubt concerning the unimpaired
functioning of Mr. Page's brain during the course of the crime.” In my
concurring opinion, I wrote, “1 cannot exclude the possibility, even probability,
that prolonged child neglect and abuse, sexual abuse, head injuries, unavailability
of supportive parents, and the lack of societal support at critical times, in
combination, contributed to the explosion that occurred in Ms. Tuthill’s
bedroom.”

Therefore, because 1 concluded that I could not find “beyond a reasonable doubt”
that the death penalty was appropriate, I concurred in the decision to sentence
Page to life in prison without the possibility of parole.

2. You received considerable criticism from your community for altering the sentence
of a convicted child rapist. Seven months after sentencing the defendant to 10 years
in prison, you held another sentencing hearing and changed the sentence to two
years in prison and 10 years of probation.

a. Please explain what led you to holding a new hearing seven months after the
original sentencing.

Response: Lawyers representing the defendant filed a motion for reconsideration
of the sentence under Rule 35(b) of the Colorado Rules of Criminal Procedure.

b. What factors led you to change the sentence?

Response: During my 12 plus years on the bench 1 would estimate that 1 have
sentenced in the range of 300 to 400 sex offenders, many of whom are serving
very long prison sentences, including indeterminate to life sentences. In these
cases as in all criminal sentences I consider public safety including the possibility
of recidivism as well as the rights and feelings of victims of these crimes and their
families.

In this case my decision was based on my concern for community safety and,
specifically, what the defendant would be like when he completed his sentence.
Charles Brooks was hearing impaired and communicated through sign language
interpreters. The motion for reconsideration reported that Brooks would not be
placed on the list to receive offender specific treatment in the Department of
Corrections because there was no sign language interpreter available to attend the
sessions with him. This issue was further developed at the hearing on the motion,
and an alternative approach was proposed. The alternative was to incarcerate him
in our local jail where it was said he could receive sex offense specific treatment,
and if he successfully completed that treatment, he could serve the remainder of
his sentence on “Intensive Supervision Probation” with zero tolerance for any

322

violation. Given the public safety concern about treatment in the Department of
Corrections, the fact that Brooks would be in a locked facility for two years and if
then released would be under very strict supervision, and the fact that Brooks had
no prior sex offenses or any other reported criminal convictions, I believed that
this alternative approach was the better one from an overall community safety
perspective.

I also believe that the concern motivating my decision was reflected in the
findings of Colorado’s “Lifetime Supervision of Sex Offenders Act” which
became effective five months after Brooks’ crime and therefore did not apply to
his ease but was in effect when he was sentenced. The legislative declaration
states:

The general assembly hereby finds that the majority of persons
who commit sex offenses, if incarcerated or supervised without
treatment, will continue to present a danger to the public when
released from incarceration and supervision.

C.R.S. §18-1.3-1001.

Unfortunately, Brooks did not successfully complete the offense specific
treatment that he received. He refused to admit significant parts of the crime,
which is a requirement for ultimate completion of the program, and he tested
positive one time for marijuana. As a result, 1 promptly re-imposed the 10-year
prison sentence and returned him to the Department of Corrections to serve it.

3. Do you believe that our federal government is one of limited and enumerated
powers?

Response: Yes. That was the structure of the Constitution and is specifically reinforced
in the Tenth Amendment.

4. Do you believe it is proper for a judge, consistent with governing precedent, to strike
down an act of Congress that it deems unconstitutional? If so, under what
circumstances?

Response: Yes. That principal was established in Marbury v. Madison and has been a
part of our jurisprudence ever since. However, statutes are presumed to be constitutional.
They must be interpreted and applied if possible so as to be constitutional. Striking down
an act of Congress should be done rarely, narrowly, and only when it is clear based upon
existing precedents that the act in part or in whole cannot be construed or applied in a
manner that is consistent with the Constitution.

5. What is the most important attribute of a judge, and do you possess it?

323

Response: The most important attribute of any judge is a commitment to apply the law,
whether statutory or in the form of existing appellate precedent, impartially and fairly,
and not to let the judge’s personal feelings or desires regarding a result play any role.

The rule of law is absolutely fundamental, and I have followed it without fail in my years
as a judge. There are several other important attributes of a trial judge: ( 1 ) treating
people who come before the judge with courtesy and respect; (2) listening with an open
mind, and making lawyers and litigants feel that they have been heard; (3) deciding
issues promptly; and (4) explaining decisions so that those affected by them understand
the judge’s reasoning. I have always striven to act according to those qualities in my
years as a state court trial judge. I certainly cannot claim perfection, but some of the
honors that are listed in nty Senate Judiciary Questionnaire perhaps indicate that 1 have
been perceived as having these attributes.

6. Please explain your view of the appropriate temperament of a judge. What

elements of judicial temperament do you consider the most important, and do you
meet that standard?

Response: A trial judge must recognize that some of the lawyers and most of the non-
lawyers who come before him or her arc nervous, scared, and of course, worried about
the outcome of what may be the most important legal matter in their lives. We also deal
with many people who cannot afford attorneys and are trying to represent themselves pro
se. A judge must treat all of these people with courtesy, respect and often with patience.
The judge’s demeanor often means even more to the public than his intelligence and
knowledge of the law. There is an expression, “black robe disease,” that describes judges
who are arrogant, sarcastic, short-tempered, and impatient. I do not have that disease. 1
cannot claim that I have never been short or impatient with someone. However, I can
honestly say that any such lapses have been rare. I believe that I have, and that I am
perceived to have, a good judicial temperament. My evaluations by the Judicial
Performance Commission in 2000 and 2006 reflect that. I will strive to continue that
demeanor and perception if I am confirmed as a federal judge.

7. In general, Supreme Court precedents are binding on all lower federal courts and
Circuit Court precedents are binding on the district courts within the particular
circuit. Are you committed to following the precedents of higher courts faithfully
and giving them full force and effect, even if you personally disagree with such
precedents?

Response: Yes.

8. At times, judges are faced with cases of first impression. If there were no controlling
precedent that dispositively concluded an issue with which you were presented, to

324

what sources would you turn for persuasive authority? What principles will guide
you, or what methods will you employ, in deciding cases of first impression?

Response: If the issue involves interpretation of a statute, I would start with the plain
language of the statute. If that did not provide a clear answer, I would try to determine
from any legislative history that might be available the intent of the drafters of the statute.
I would also attempt to find any useful analogy that might guide me to an appropriate
interpretation. 1 would expect the parties, if represented by counsel, to address all these
different avenues in their briefs. In the end, I know that my responsibility is to do
everything within my power to determine what the intent of the legislative body was and
not to make a policy decision.

9. What would you do if you believed the Supreme Court or the Court of Appeals had
seriously erred in rendering a decision? Would you apply that decision or would
you use your own judgment of the merits, or your best judgment of the merits?

Response: As a trial judge my responsibility and obligation are to follow the appellate
precedents, whether or not I agree with them. There have been occasions during my
years on the trial bench when I have questioned in my own mind the results reached by
higher courts, but that has never and would never cause me not to follow them.

10. As you know, the federal courts are facing enormous pressures as their caseload
mounts. If confirmed, how do you intend to manage your caseload?

Response: The only real answer is to be willing to roll up your sleeves and work hard.
During my years on the bench I have done that, and I have instilled in my staff the same
attitude. I have listed in response to question 1 1 a number of specific practices that have
helped me to manage my large caseload as a state trial judge. These all are practices that
I desired as a trial lawyer, that 1 have implemented as a judge, and that I have promoted
among the 2 1 trial judges in my courthouse. The First Judicial District of Colorado, of
which I am the Chief Judge, was just ranked in Colorado Law Week (April 1 1, 201 1 cd.)
as the “best” of the 22 judicial districts in tire State in terms of getting civil cases resolved
promptly and sixth best (first among the large metropolitan districts) in getting criminal
cases resolved promptly. I am proud of our record, and I will be dedicated to ntnning a
similar docket if I am confirmed as a federal judge.

11. Do you believe that judges have a role in controlling the pace and conduct of
litigation and, if confirmed, what specific steps would you take to control your
docket?

Response: Yes, particularly in civil cases. Early case management conferences among
the lawyers, parties and judge can be a great help in establishing schedules and narrowing

325

issues, and I will conduct those if 1 am confirmed as a federal judge. 1 have always
required parties to set a trial date very early in the case, and to stick with it absent
extraordinary circumstances, and I will continue to do this. It is very important to decide
motions, such as motions to dismiss and motions for summary judgment, promptly. My
staff knows this and gets motions to me immediately after they are “ripe” (briefs filed). 1
have tried to get most motions decided within a couple of weeks after they arc brought to
my attention. I have been and will continue to be willing to grant dispositive motions
such as motions for summary judgment or partial summary judgment when appropriate in
order to narrow issues and to reduce unnecessary delay and cost to the parties. For the
whole bench to function efficiently, it is important that a judge be willing to cover
hearings and trials for other judges when the other judge is overbooked in order to avoid
unnecessary delays. Our bench functions that way, and 1 will bring that attitude with me
to the federal bench if I am confirmed. These things can be done without being
overbearing, unreasonable or discourteous. 1 came to the state bench with a background
of 26 years as a trial lawyer, and I have a pretty good understanding of what the lawyers
and their clients need and want in terms of moving cases forward.

12. Under what circumstances do you believe it appropriate for a federal court to
declare a statute enacted by Congress unconstitutional?

Response: A judge must respect the policy-making role of the legislature. A judge must
also assume that a statute that has been enacted by Congress and signed into law by the
President was intended to be and likely is constitutional. However, the role of an
independent judiciary includes preserving and protecting the Constitution, including
finding a statute or part of a statute unconstitutional or unconstitutional as applied. It is a
role that must be exercised narrowly and rarely.

13. Please describe with particularity the process by which these questions were
answered.

Response: I drafted my answers, discussed them with officials of the Department of
Justice, finalized my answers and requested that they be submitted to the Senate Judiciary
Committee.

14. Do these answers reflect your true and personal views?

Response: Yes.

326

Senator Chuck Grassley
Questions for the Record

Lisa O. Monaco, Nominee to be Assistant Attorney General (National Security)

1 . Please provide the Committee with detail on the positions you have held within the

Department of Justice and how they qualify you to be an Assistant Attorney General as
head of the National Security Division.

Throughout the positions I have held at the Department of Justice, first as a line
prosecutor and later during my time at the Federal Bureau of Investigation (FBI), I have
gained national security experience from both an operational and prosecutorial
perspective. As an Assistant United States Attorney (AUSA), 1 learned the value of
rigorous analysis and legal argument and how to build and prosecute an effective criminal
case. Since 2006, 1 have devoted the vast majority of my time to working on national
security issues, first at the FBI, as Special Counsel and then as Chief of Staff to the
Director, and later at the Deputy Attorney GeneraPs Office as an Associate Deputy
Attorney General and then as the Principal Associate Deputy Attorney General. I have
developed expertise in the area of national security by working on intelligence
investigations, national security-related and other criminal investigations and prosecutions,
and other legal, operational and policy challenges relating to the Department's national
security mission.

At the FBI, I provided advice and guidance to Director Mueller on a range of
national security matters and worked with the FBI's leadership team to develop the FBI's
National Security Branch and to further the integration of intelligence across all facets of
that organization. I helped manage the Bureau's national security assets and worked to
advance the FBI’s transformation from a law enforcement agency to a national security
organization focused on preventing terrorist attacks. Among other things, I gained an
understanding of and appreciation for, the FBI's national security program and
operations, the Bureau’s role as an element of the intelligence community, and the
importance of FISA as an intelligence collection tool from which the whole intelligence
community benefits. During my tenure at the FBI, I gained firsthand experience working
within the Intelligence Community to understand the role that effective and coordinated
intelligence operations play in safeguarding our nation's security.

In the Deputy Attorney GeneraPs Office, I have helped to supervise the national
security functions of the Department, including the National Security Division (NSD),
United States Attorneys Offices, the FBI and components of the Drug Enforcement
Administration. I have worked with partners in the intelligence community and in the
interagency process and have developed an understanding of the national security
architecture of the federal government. In my career working with agents, analysts and
lawyers across the government I have developed an appreciation of the challenges
confronting national security professionals and prosecutors as they pursue their mission of
developing intelligence, sharing information, and working together to disrupt national
security threats and protect the nation. As a result of all these experiences, I have gained a

327

broader understanding of the range and complexity of national security issues confronting
the Department’s components and United States Attorneys Offices as well as the
importance of striking the appropriate balance of intelligence community equities, legal
requirements and prosecutorial interests.

As a lawyer as well as a national security official, I have a keen appreciation of the
significant threats we face as a nation and the importance of effectively addressing those
challenges in a manner that promotes the nation’s security while also preserving our
fundamental rights and liberties. 1 understand the importance of using all tools in order to
combat the national security threats we face and of doing so consistent with statute,
executive order, relevant regulations, and the Constitution. Drawing on my experience as
a prosecutor as well as the perspective I have gained at the FBI and with the Department
of Justice working on the operational aspects of national security investigations, I will
exercise independent judgment in managing the Department’s national security functions
while ensuring that the Division’s activities are properly coordinated with the nation’s
other national security activities when appropriate. I will do the same in providing advice
to and advancing partnerships with the Division’s partners within the intelligence
community and in working cooperatively with congressional oversight committees.

2. At your hearing, I asked if you agreed with the sentiment that because there is not an

enemy state against which such a war can be waged, the very notion of a “war” on terror
is at best a public relations expression. In the alternative, I asked if you believed the
United States is engaged in a war on terror. You replied “I believe we are at war and I
believe we are at war against determined enemy and a very adaptable enemy, and that's
been my experience in the time that I've served in the FBI and in the department.”

a. With whom do you believe we are at war?

Pursuant to the Authorization for the Use of Military Force enacted by the Congress
in September 2001, the United States is engaged in hostilities with Al Qaeda, the
Taliban and associated forces.

b. Why do you describe the enemy as an “adaptable enemy?”

I describe them as an adaptable enemy because over time, and as has become publicly
known, Al Qaeda and those who are inspired by it, have evidenced evolving tactics in
their recruitment, planning, operations, and operational security. Throughout this
time, the threat environment has become increasingly complex, encompassing
terrorist plots, espionage, and sophisticated cyber intrusions from state and non-state
actors.

c. If confirmed as Assistant Attorney General, what will you do to support this war
and to respond to adaptations made by the enemy?

2

If confirmed as Assistant Attorney General for National Security, I will work to
ensure that agents, analysts, and prosecutors share information and use all lawful
tools to detect national security threats mindful of the need to ensure that our tools
keep pace with the threat we face and that they are used in a manner consistent with
the rule of law. Among other things, the Assistant Attorney General for National
Security' has the responsibility, pursuant to designation from the Attorney General, to
approve applications to the Foreign Intelligence Surveillance Court and to approve
the use of information from FISA warrants in criminal and other contexts. If
confirmed, I will lend my support, and legal guidance to these and other efforts to
ensure that the advances achieved through authorities like the PATRIOT Act, the
FISA Amendments Act and other tools are not diminished. My guideposts in this
regard will be to ensure clarity’, stability and flexibility for agents and operators in the
field and the prosecutors who work with them consistent with the laws and the
Constitution.

In a talk you gave to a class at American University you recommended two books for the
class to read. One of these books was Terror and Consent by Professor Phillip Bobbitt.
In the introduction to his book. Professor Bobbitt writes: “Among well-informed
persons, a number of dubious propositions about twenty-first century terrorism and the
Wars against Terror are widely and tenaciously held.” He then lists a number of the
assumptions he believes are dubious. I am interested in knowing your views on several
of these assumptions. Please respond to the following questions:

In my remarks to a group of undergraduate students in an International Affairs class
at the American University I referred to two books that had recently been released:
Terror and Consent , by Phillip Bobbitt; and Law and the Long War, by Benjamin
Wittes. I have not reread either book but my recollection is that I mentioned these
books in order to encourage a group of college students interested in international
and current affairs to seek out and expose themselves to a range of approaches -
historical and analytical — to the complex issues of terrorism and security.

a. Do you believe “that because terrorism will always be with us, there can be no
victory in the war against terror”?

I have not reviewed the portions referenced above but, as a general matter, I
understand that there have been examples of terrorist movements throughout history,
including of course the goal of al Qaeda to establish a global Islamic caliphate.
Although the war on terror is not likely to end like past wars that does not mean that
terrorist movements cannot be disrupted and degraded. Since September 11, 2001,
the United States has made substantial progress in addressing the threat posed by al
Qaeda, the Taliban and associated forces. The leadership and operational capabilities

329

of a] Qaeda have been degraded and it should be our goal to continue to apply all
instruments of national power to detect, deter and disrupt the terrorist threat.

b. Do you believe “that because terrorism is only a means to an end. . . ‘one man’s
terrorist is another man’s freedom fighter”’?

I have not reviewed the portion referenced above or the context in which it appears,
but as a general matter, 1 believe terrorism can fairly be described as the use of
violence and assassination to intimidate governments and civilian populations and
that terrorists or terrorist organizations are so designated because they engage in
terrorist activity or threaten the security of United States nationals or the security' of
the United States. I do not believe that violence or assassination to intimidate civilian
populations should be justified as a “freedom fight.”

c. Do you believe “that terrorism is best treated as a problem of crime, by law
enforcement officials, and not as a matter for defense departments, which are
inappropriate when there arc no battlefield lines or armies to confront...”?

1 have not reviewed the portion referenced above or the context in which it appears,
hut as a general matter, I believe that we must bring to bear all instruments of
national power against the terrorist threat and use whatever tool works best —
military, intelligence, prosecution (military or civilian), diplomatic — in order to
disrupt and incapacitate a particular threat. Sometimes that tool will be law'
enforcement and the criminal justice system, sometimes that tool will be a military
prosecution, sometimes that tool will be the use of military or intelligence assets.

d. Do you believe “that terrorists ‘win’ if they are able to force government to
enhance their power of detention, surveillance, and information collection or if the
citizenry significantly modifies its everyday behavior”?

I have not reviewed the portion referenced above or the context in which it arises, but
as a general matter, I do not believe terrorists “win” in these circumstances. I believe
that we must ensure that we use all lawful means to disrupt national security threats
and we must do so consistent with the Constitution and the laws of the United States.
If confirmed, my priority will be to ensure that if there are new tools that can be
brought to bear that are consistent with the Constitution, we explore them and work
with Congress to ensure that those on the front lines have the tools they need.

e. Do you believe “that the root causes of terrorism lie in conditions of poverty,
economic exploitation, neglect of health and education, and religious indoctrination
that must be reversed before a war against terrorism can be won?”

4

330

I have not reviewed the portion referenced above or the context in which it appears,
but it seems reasonable to me that a number of the factors could contribute to a
particular terrorist threat or movement.

4. In all of the outlines you provided the Committee on talks you have given on national
security issues you include a section concerning “balancing national security and civil
liberties.”

a. Do you believe that an appropriate balance has been struck between national
security concerns and civil liberties?

Agents, analysts and prosecutors who work every day to protect us from national
security threats do so pursuant to the authorities Congress has given them under the
Constitution. I believe these authorities reflect an effort to strike a balance between
the imperative of protecting national security interests of the United States on the one
hand and the importance of doing so consistent with the fundamental rights
guaranteed under the Constitution. Through carefully crafted authorities,
compliance efforts within the Executive Branch and robust Congressional oversight
of those compliance efforts, 1 believe we have been able to strike the right balance
over time. As the threat continues to evolve, and technology develops that better
enables us to detect and disrupt threats while at the same time providing new tactics
and capabilities to those who would do us harm, we must be constantly vigilant in our
efforts to maintain that balance.

b. What, if any, reforms do you think are necessary for the protection of privacy and
civil liberties?

As noted above, as a general matter I believe we have been able to strike a balance
over time in protecting security and guarding the privacy and civil liberties of the
American people. As the threat continues to evolve, and as technology develops that
better enables us to detect and disrupt threats while also providing new tactics and
tools to those who would do us harm, I believe it is important that Congress and the
Executive Branch continue to be vigilant in working together to develop tools that
enable us to keep pace with the threat while ensuring that that balance is maintained.

5. At your hearing, I asked you about the 1995 Gorelick memo which established a wall
between the criminal investigators and the intelligence community. I specifically asked
whether or not you were involved in any subsequent review, revision or implementation
of the memo. You replied that you didn’t believe so, but would give that question more
thought. Do you have anything to add to the response you gave at your hearing?

No.

5

331

6. At your hearing, I asked if you support the permanent extension of PATRIOT Act
provisions which are soon to expire - the “lone wolf’ provision, the roving wiretaps
provision, and the business records provision. Y ou responded that you “think we need to
have those provisions reauthorized for a substantial period of time in order to give
stability and clarity to our agents in the field who need those tools quite essentially.” Do
you disagree with FBI Director Mueller’s testimony that these should be permanent?

In my testimony 1 intended to convey the critical importance to the nation’s national
security efforts of the PATRIOT Act reforms and, in particular, the need to reauthorize for
a substantial period the three provisions currently set to expire next month. I understand
and agree with Director Mueller’s desire to provide the agents of the FBI with clarity and
stability in the tools they use through a permanent reauthorization of these critical tools. If
Congress determines that it should revisit these authorities, and if I am confirmed as the
Assistant Attorney General for National Security, I will work with Congress to ensure that
the operators charged with detecting and disrupting threats have the tools they need to do
so consistent with the rule of law.

7. You worked for the FBI for years, providing advice and making decisions on national
security issues. Have the three provisions referenced above (lone wolf, roving wiretaps,
business records) been useful to the FBI to prevent terrorist attacks in the United States?
Please explain how you would use these tools if confirmed as an Assistant Attorney
General.

Based on my experience, the three expiring provisions are critical tools that have given
national security investigators many of the same capabilities that have long been available
to criminal investigators. For instance, the roving wire tap provision has permitted
investigators to track spies and terrorists who arc trying to evade surveillance and the
business record provision has permitted investigators access to key documents and data in
national security, espionage and terrorism cases. The lone wolf provision, although not
used to date, permits investigators to keep up with the growing threat of the lone or self-
radicalized offender. If I am confirmed, my job would be to ensure that these tools are
used aggressively and appropriately - and with full court review and approval. If
confirmed, I would have the responsibility of approving, pursuant to Attorney General
designation, applications to the Foreign Intelligence Surveillance Court, including
applications for the use of these and other tools.

8. If these three provisions are not reauthorized, or if they are subs tantially weakened by
including new requirements, what would be the consequence for agents in the field?

What would be the general effect on national security investigations?

If these provisions are not reauthorized or are substantially weakened, agents in the field
would be deprived of vital investigative tools, and their efforts to detect terror threats and

6

332

ferret out espionage actors and to protect the national security would be impeded. This
would have a potentially devastating effect on national security investigations.

9. Three other tools which are not set to expire and do not need rcauthorization arc the
Foreign Intelligence Surveillance Act (FISA) pen register and trap-and-trace orders,
national security letters, and delayed notice search warrants.

a. The FBI regularly uses pen register and trap-and-trace authority in both national
security and criminal areas. Do you believe increased legal burdens to obtain these
investigative tools are needed?

I do not believe there is a need to increase the legal burdens to use these tools. I
would want to ensure that any changes to the legal standards governing the use of this
authority not adversely affect its operational effectiveness.

b. Legislation has been introduced that would increase the legal standard for FISA
pen registers, while keeping the criminal legal standard lower. Do you support
increasing the legal standard for national security pen registers while keeping the
criminal standard unchanged?

I have not reviewed any specific legislative proposal in this regard, but as a general
matter, I would be concerned about any effort to increase the legal standard on the
use of the FISA pen register tool. I would want to ensure that any changes did not
adversely affect its operational effectiveness and would want to consult with agents
and operators in that regard. This tool is utilized with full court authority and
approval to establish non-content information in order to demonstrate probable
cause for other more intrusive investigative steps where warranted.

c. If the legal standards are modified, to make FISA pen registers more difficult to
obtain than criminal pen registers, would this create incentive for law enforcement
to use a criminal pen registers and not FISA pen registers?

Increasing the standard for obtaining FISA pen registers could conceivably increase
the likelihood that investigators would use criminal pen registers instead.

d. Please describe your view on the use of National Security Letters as part of the
building blocks of a national security investigation.

7

333

National Security Letters are essential to many national security investigations. They
are used to obtain transactional and subscriber information - not content -in order
to permit national security investigators to identify threats and, as importantly, to
rule out potential threats thereby conserving and focusing investigative and agent
resources. Important reforms have been put in place in recent years - both at the
FBI and within the Department of Justice — to review r and monitor the use of NSLs,
to ensure the proper predication exists and is documented, and to report to Congress
on their use. These reforms have strengthened this vita! national security tool.

e. What is your view on imposing a sunset on National Security Letters?

NSLs have never had a sunset requirement; I do not believe a sunset is necessary
for the reasons described above. Should Congress decide to impose a sunset, and if I
am confirmed, I would want to work with Congress to ensure that agents and
prosecutors continue to have this vital national security tool and that it is used
consistent with the laws of the United States.

f. Please describe your view on the use of Delayed Notice Search Warrants as a
national security tool.

Delayed notice search warrants are an important national security tool. As in the
criminal context, they can be used when it is important to maintain operational
security and secrecy regarding a particular investigative step. This can be
particularly important w hen the target of the investigation or search is a terrorist
suspect, foreign intelligence officer or spy.

g. Is there any necessity for, or advantage to be obtained, in decreasing the delay
period for Delayed Notice Search Warrants?

I am not aware of any necessity or advantage to investigators to decreasing the period
of delay in the use of this tool. As I understand it, when seeking authority for a
delayed notice search warrant, the government must make a showing to the court to
establish the necessity for a particular period of delay permitted within the statute.
The court has the discretion to grant that request or to grant a period of delay that is
less than the maximum allowable period permitted by statute.

10. Regarding the Electronic Communications Protection Aet (ECPA) - the Digital Due
Process Coalition supports a probable cause standard for obtaining all electronic
communications, regardless of its age, the location or storage facility, or the provider’s
access to the information.

a. Do you support raising the legal standard for obtaining electronic communications
to a “probable cause” determination?

8

334

I have not reviewed any particular legislative proposal in this regard, but speaking
generally, I would be concerned with an increase in the legal standard for obtaining
electronic communications and would want to ensure that any change not adversely
affect operational effectiveness. As noted above, NSLs (some of which are issued
under ECPA) form the building blocks of national security investigations under a
relevance standard. This is vital to the ability of national security investigators to
obtain information that forms the basis for probable cause and to further national
security investigations.

b. Do you believe the legal standard to obtain information through a pen register or
trap-and-trace order should be increased to probable cause or 2703(d) standard?

No, for the reasons described above.

1 1 . With the advancement of technology, the gap is widening between what the courts
authorize under the Communications Assistance for Law Enforcement Act and what
communications companies are capable of providing.

a. Please comment on your understanding of the gap between capability and current
legal authority.

Based on my experience working with law enforcement and the intelligence
community for the last several years, my understanding is that the advance of
technology has created a gap between law enforcement’s ability to access and obtain
information to which it is legally entitled and the information it is technically able to
obtain. This gap has impeded investigators’ ability to obtain information to which
they are entitled pursuant to court order and has slowed national security
investigations.

b. Would you agree that the Communications Assistance for Law Enforcement Act
needs updating?

I agree that Congress and the Executive Branch should work together to ensure that
investigators can effectuate the authority given to them by Congress and the courts.
Whether that takes the form of updates to the Communications Assistance for Law
Enforcement Act (CALEA) or another mechanism, if 1 am confirmed I will make it a
priority to work with Congress in this regard.

c. If Congress does not pass a law requiring corporate compliance, what will happen
to the ability to collect what a judge has ordered them to get?

9

335

If the increasing inability to effectuate current legal authorities is not addressed, and
as technology* advances, law enforcement will likely continue to lose the ability to
access information to which a court has granted to them lawful access. This will
pose further challenges for law enforcement and national security investigators and
make it more difficult to detect, deter and disrupt threats.

d. Are you concerned about the possibility of law enforcement “going dark? 1 ’ How
would “going dark” affect terrorism investigations?

For the reasons described above, as a former federal prosecutor and as a national
security professional, I am concerned about the inability of law enforcement and
national security investigators to access information to which a court has granted
them lawful access. This problem has been described as the “going dark” problem.
As terrorists and spies increasingly use new modes of communication there is greater
risk that national security investigators will not be able to access critical pieces of
information to prevent terrorist attacks despite having legal authority to obtain such
information.

e. If confirmed, will you work with Congress to find a legislative solution to this
problem?

If I am confirmed, I will welcome the opportunity to work with Congress to identify
solutions to this critical national security problem.

12. You previously worked as Counsel and Chief-of-Staff to the FBI Director. The FBI was
recently criticized by the Homeland Security and Government Reform Committee,
(HSGAC) in a committee report addressing the lessons learned from the Fort Hood
shootings by Major Nidal Hasan. The report recommended that the FBI “ more
convincingly share information and coordinate operations with other federal, state, and
local agencies.”

a. If you received information that the FBI is not sharing information with federal
prosecutors, what is the responsibility of the National Security Division Assistant
Attorney General? What would you do to fix the problem?

The responsibility of the Assistant Attorney General (AAG) for National Security is
to ensure a coordinated approach to national security investigations working with the
FBI, United States Attorneys Offices, and the intelligence community. As AAG, I
would work to continue the strong partnerships between the FBI and the National
Security Division (NSD) and to maintain cooperative relationships now realized by-
agents, analysts, and prosecutors working side-by-side on investigations. NSD was
created to ensure that criminal investigators and prosecutors on the one hand, and

10

336

intelligence lawyers and the intelligence community on the other, have the same
information about the same terrorists and intelligence targets. If T identified an
instance where information that should be shared was not being shared, I would work
diligently to break down whatever barrier was impeding that communication and put
in place a system to ensure that problem did not recur.

b. As the Assistant Attorney General, will you have any problem separating yourself
from the FBI, given your previous affiliation with that agency, and holding them
accountable when needed?

No. If I am confirmed as the Assistant Attorney General for National Security, it will
be part of my responsibility to provide oversight of intelligence, counterintelligence,
and national security matters at the FBI to ensure conformity with applicable laws
and regulations. My experience at the FBI will be an asset in my ability to do so as it
will enable me to ask the right questions, probe the answers provided, and to work
productively, efficiently and professionally to find and implement solutions to
whatever issues and problems arise.

c. The 9/1 1 Commission discussed information-sharing as a key problem in failing to
“connect the dots”. In fact, they pointed out that the acting head of the Office of
Intelligence Policy and Review complained to the Attorney General about the lack
of information-sharing controls. As a result, he began imposing his own
information-sharing procedures on Foreign Intelligence Surveillance Act (FISA)
material. What protections arc in place at the National Security Division to prevent
this from happening again?

There are structural and procedural protections in place at the National Security
Division (NSD) lo ensure robust information sharing. First, the structure of the NSD
is one way in which the Department’s and the government’s national security
architecture ensure information sharing. Congress created the NSD in order to bring
the Department’s national security functions under one roof and under one senior
official reporting to the Deputy Attorney General and the Attorney General. In
creating NSD and the position of the Assistant Attorney General for National
Security, Congress ensured that there would be one place where both law
enforcement investigators and intelligence lawyers could share and synthesize
information. Today, national security investigators, intelligence lawyers, and
prosecutors sit together, share information, expertise and perspective, and focus
together on national security targets. Finally, the oversight responsibilities of the
NSD - including national security reviews conducted by NSD lawyers along with
lawyers from the FBI’s Office of General Counsel, and review by NSD of regular
reporting regarding FBI's national security investigations -- provide a check on the
use of these authorities and an ability to identify and correct deficiencies in
information sharing.

11

337

13. While you served as Associate Deputy Attorney General, were you involved in the
Justice Department's decision in November 2009 to try 9/1 1 mastermind Khalid Sheikh
Mohammed and four co-conspirators in Article III courts? Did you agree with that
decision?

I was among a group of lawyers who participated in discussions regarding the disposition of
the 9/1 1 conspirators. As the Attorney General said, he made his decision after considering
carefully the full case presented to him by career prosecutors and after consulting with the
Department of Defense. The Attorney General has also said that the 9/1 1 attacks were both
an act of war and federal criminal violations and that his was a difficult decision on which
reasonable persons could differ. I agree that it was a close call and that it is appropriate for
the Attorney General to make such decisions. The Attorney General has now decided to
refer the case to the military commissions in order to hold the 9/11 attackers accountable.

If confirmed, my priority will be to assist the Department of Defense and the military
commission proceeding to ensure that the 9/11 attackers are held accountable.

14. At your hearing we discussed the Attorney General’s policy reversal regarding trying
terrorists in military court. Specifically, I noted that although it was his opinion that the
best venue for prosecution of terrorists was in federal court, he made a decision to try
terrorists in a military court. He noted that he made his decision only because Congress
forced him to do so. You indicated you agreed with the Attorney General’s decision to
try terrorists in a military tribunal.

a. Do you have any doubts that military tribunals can be a successful tool in the
prosecution of terrorists?

The military commissions system, as reformed through the Military Commissions Act
of 2009, is an important tool in the effort to incapacitate terrorists and I have
confidence the commissions can be used successfully to prosecute terrorists.

b. Do you have any doubts about the constitutionality of military tribunals?

The Military Commissions system, as reformed by the Military Commissions Act of
2009, provides many of the same safeguards and protections that Americans associate
with protections afforded for fair trials in the criminal justice system; I have no
reason to doubt its constitutionality.

15. I also asked if you agreed with his opinion that the best venue for prosecution is in
federal court and that Congress forced him to do otherwise. I do not believe you
provided a clear answer to this question. Do you agree with the Attorney General that
the best venue for prosecution of terrorists is in federal court rather than before military
tribunals?

12

338

I agree with the Attorney General that both federal courts and military commissions are
critical tools. As the President and the Attorney General have said, federal courts have
proven over many years to be one of the most effective tools in the detention and
incapacitation of terrorists and military commissions are also an important tool in
combating terrorists and the threat they pose. As I indicated in my opening statement, we
must ensure that we can use all tools to disrupt terrorist threats. In some cases the most
effective tool may be prosecution in the criminal justice system while at other times it may
be the use of military commissions, and in still other instances the use of military,
intelligence or diplomatic assets may be the best method by which to incapacitate a
particular terrorist threat.

16. In Attorney General Holder’s public statement on this issue, he criticized Congress for
encroaching on the “responsibility of the executive branch” and warned that it “could
have serious ramifications” to our national security.

a. Do you agree with the Attorney General that Congress inappropriately interfered
with the executive branch?

I believe that Congress has an important role in both the authorization and
oversight of the national security activities of the Executive Branch. As the
President, the Attorney General and the Secretary of Defense have all indicated, the
exercise of prosecutorial discretion has always been an Executive Branch function.

I recognize that it is important to balance the roles of the respective branches in
exercising national security responsibilities.

b. What oversight role does Congress have with regard to executive branch
decisions concerning national security?

I believe the Congress plays a unique and important role in oversight and
authorization of the Executive Branch’s national security activities. Under the
National Security Act, Congress must be kept fully and currently informed of
significant intelligence activities and has the responsibility to exercise appropriate
oversight of the Executive’s national security activities.

c. If confirmed, will you cooperate with the Congress and its Committees in the
exercise of its oversight responsibilities?

Yes.

17. The President, commenting on the decision to try the 9/1 1 co-conspirators in military
tribunals instead of in Article III courts, stated: “To treat these folks as profoundly

13

339

different than the run-of-the-mill murderer or rapist is wrong in one respect - it elevates
them." Do you agree with the President that subjecting terrorists to military tribunals
elevates them?

I am not familiar with this statement or the context in which it was made, f understand
that there are many deeply held and principled views regarding the choice of forum in
which to prosecute the 9/11 attackers. I also understand that all seem to agree on the need
to hold the 9/1 1 attackers accountable. I believe that the attacks of 9/1 1 were both an act
of war and criminal violations and that it is appropriate to hold the 9/1 1 attackers
accountable in military commissions.

1 8. Please describe with particularity the process by which these questions were answered.

I received these questions from the Office of Legislative Affairs on April 20, 2011. 1 then
completed a draft of these answers and discussed them with colleagues within the
Department of Justice. I then finalized my answers and authorized their transmission to the
Committee.

19. Do these answers reflect your true and personal views?

Yes.

14

340

Responses of Nelva Gonzales Ramos

Nominee to be United States District Judge for the Southern District of Texas
to the Written Questions of Senator Charles Grassley

1. Do you believe that our federal government is one of limited and enumerated
powers?

Response: Yes.

2. Do you believe it is proper for a judge, consistent with governing precedent, to strike
down an act of Congress that it deems unconstitutional? If so, under what
circumstances?

Response: Yes. It is proper for a judge to strike down an act of Congress when Congress
enacts a law that is contrary to the Constitution or when Congress enacts a law that
exceeds its authority under the Constitution. In determining whether an act of Congress
is unconstitutional, 1 would follow Supreme Court and 5th Circuit precedent.

3. What is the most important attribute of a judge, and do you possess it?

Response: The most important attribute of a judge is a firm commitment to the rule of
law. I possess this attribute.

4. Please explain your view of the appropriate temperament of a judge. What
elements of judicial temperament do you consider the most important, and do you
meet that standard?

Response: The appropriate temperament of a j udge includes the qualities of impartiality,
fairness, patience, courtesy, and respect for everyone who comes before the court. The
most important elements of judicial temperament are impartiality and respect. I meet this
standard.

5. In general, Supreme Court precedents are binding on all lower federal courts and
Circuit Court precedents are binding on the district courts within the particular
circuit. Are you committed to following the precedents of higher courts faithfully
and giving them full force and effect, even if you personally disagree with such
precedents?

Response: Yes.

6. At times, judges are faced with cases of first impression. If there were no controlling
precedent that dispositively concluded an issue with which you were presented, to
what sources would you turn for persuasive authority? What principles will guide
you, or what methods will you employ, in deciding cases of first impression?

341

Response: In matters concerning statutory interpretation, I would first look to the text of
the statute. If the text is not clear, I would review the legislative purpose in enacting the
statute. If an ambiguity remained, I would look to analogous precedent from the
Supreme Court and the 5th Circuit.

In matters concerning the Constitution, I would first look to the text of the Constitution.
If the text is not clear, 1 would look to analogous precedent from the Supreme Court and
the 5th Circuit.

7. What would you do if you believed the Supreme Court or the Court of Appeals had
seriously erred in rendering a decision? Would you apply that decision or would
you use your own judgment of the merits, or your best judgment of the merits?

Response: I would be bound by precedent so 1 would apply the decision.

8. As you know, the federal courts are facing enormous pressures as their caseload
mounts. If confirmed, how do you intend to manage your caseload?

Response: If confirmed as a district judge, I would manage my caseload by setting and
enforcing reasonable deadlines for discovery, motions, and trials. 1 would rule on
motions promptly and resolve cases as efficiently as possible. I would also utilize the
assistance of the Magistrate Judges as appropriate.

9. Do you believe that judges have a role in controlling the pace and conduct of
litigation and, if confirmed, what specific steps would you take to control your
docket?

Response: Yes. I believe that judges have a significant role in controlling the pace and
conduct of litigation. If confirmed as a district judge, I would take the steps outlined in
response to Question 8 to control my docket.

10. Under what circumstances do you believe it appropriate for a federal court to
declare a statute enacted by Congress unconstitutional?

Response: It is appropriate for a court to declare a statute enacted by Congress
unconstitutional when the statute contravenes the Constitution or when Congress has
exceeded its constitutional authority in enacting the statute. In determining whether a
statute is unconstitutional, I would follow Supreme Court and 5th Circuit precedent.

11. Please describe with particularity the process by which these questions were
answered.

2

342

Response: I reviewed the questions and prepared my responses. I discussed my
responses with a Department of Justice official. I then finalized my responses and
forwarded them to the Department of Justice for submission to the Senate Judiciary
Committee.

12. Do these answers reflect your true and personal views?

Response: Yes.

3

343

SUBMISSIONS FOR THE RECORD

Senator Patrick Leahy, Chairman
Committee on the Judiciary
224 Ditksen Senate Office Building
Washing ton DC 205 10

Re: Chief Judge Brooke Jackson

Finding experience, an excellent knowledge of the law, a calm demeanor, and an absolutely
unbiased approach to issues in a person to serve on the Federal Bench is a difficult task. I would
recommend our District Chief Judge Brooke Jackson as he definitely fits these stated
requirements. It is my understanding that he has been nominated and is now awaiting
confirmation.

My association with Judge Brooke Jackson began when I was serving in the State House of
Representatives. Judge Jackson is the Chief District Judge in the Judicial District in which I
reside. For background purposes, I served in the Colorado State House for 1 9 years and was the
Majority Leader for a period of time. I also serve on the Judiciary Committee. As you know, the
General Assembly writes many laws and it is the Judiciary who has the task of interpreting and
applying those laws fairly and correctly. Judge Jackson was always available to assist me on
thinking through the many legal issues we confronted. I found the Judge to be the most effective
and forthright person to work with in finding viable solutions.

Then in March of 2008, Senator Ken Salazar asked me to serve on a Commission to aid in the
selection of a person to be appointed to fill a vacancy on the U.S. District Court Judge Jackson
was one of the applicants which I had the good fortune of interviewing and learned more of his
background. You should know he was a unanimous choice.

Judge Jackson is highly respected in our community. He is known for his demeanor, his strict
enforcement of the law, and his leadership. When he was appointed Chief Judge, he had to create
order and fairness to our Judicial District which he did successfully. I highly recommend him for
the position for which he has been nominated. The experiences I have had working and knowing
Judge Brooke Jackson’s capabilities, I have never found any negatives.

Sincerely,

WU*"

Nomut V. Anderson
Senator, retired
2622 South Iris Street
Lakewood, CO 80227
Phone: 303-986-0397

344

H. Gregory Austin

301 High Street
Denver, Colorado 80218

Home Telephone: 3 03-722-2227 Office Telephone: 303-295-8 1 76

Home Facsimile: 303- 722-9009 Office Facsimile: 303-672-0359

Hom E-Maif gdsm^KtoSUlCOin Office E-Mail: gftUHfin/ ^Vl r>t l«rnLhar t nr»m

March 18,2011

The Honorable Patrick Leahy,
Chairman

Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 205 1 0

The Honorable Chuck Grassley,
Ranking Member
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Re: R. Brooke Jackson, nominee for
judicial appointment

Dear Chairman Leahy and Senator Grassley :

It is my pleasure to write in support of R. Brooke Jackson, nominated by
President Obama for appointment to the United States District Court for the District of
Colorado. That nomination awaits a hearing before your committee.

Brooke and I were colleagues at Holland & Hart llp, a R.ocky Mountain regional
law firm headquartered in Denver, for more than 25 years, so I can claim to know him
very well. By way of full disclosure, I am a Republican and served under Presidents
Nixon and Ford as General Counsel to the Small Business Administration and Solicitor
of the Department of Interior.

Brooke was an exceptionally highly regarded partner at Holland & Hart, based
upon his superior intellect, professional skills, the leadership roles he assumed, and his
temperament and collegiality.

At Holland & Hart, Brooke’s clients were primarily business, so he fully
understands the businessman’s perspective. At the same time, he consistently
demonstrated a public spirit. His willingness to leave a partnership in a prominent law

345

March 18, 2011
page 2

The Honorable Patrick Leahy
The Honorable Chuck Grassley

firm to serve on the Colorado bench demonstrated his desire to do public service. On the
bench, he has earned a fine reputation for fairness, toughness and judicial temperament.

Brooke would be an outstanding federal judge, and I urge your committee to hear
his nomination as promptly as possible.

Very truly yours.

346

Beatty & Wozniak, p.c.

Attorneys at Law

■Sr

Michael L. Beatty

direct. ( 303 ) 407 - 4 * 9 ®

E-MAIL: M 8 EATTV®BWENMCYlAW.Cqab

CO
c £

218 Sixteenth Street. Suite 1100
Denver, Colorado 80202-5115
Telephone (303) 407-4499
Facsimile (303) 407-4404
www.bwenergylaw.com

March 21, 2011

Casper

Salt Lake City

Santa F*e

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary

224 Dirksen Senate Office Building

Washington, DC 20510

The Honorable Chuck Grassley
Ranking Member
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Re: Nomination of Brooke Jackson

Honorable Leahy and Grassley:

I have known Brooke Jackson since our days as undergraduate intercollegiate debaters on
competing teams. I was his classmate at Harvard Law School and have followed his career as an
attorney and as a state district judge. Ihus, not only do I know him both personally and
professionally, I have watched his growth and development as an attorney, a judge and an
individual. There is no one for whom I have greater respect than Brooke. He is knowledgeable,
fair, honest, and judicious. He knows when justice demands that truth be tempered with mercy
and when it must be tempered with firmness and toughness. He does not hesitate to rule and
invariably makes the right call based on the evidence and the controlling authority.

Brooke Jackson exemplifies the principles that best define our American system of
justice and he would be a great addition to the federal judiciary, I give him my highest
endorsement and recommendation.

Very truly yours.

MLB/gkb

18455 ) ' "

Tnergy aitfufjzw*'

Operating in Wyoming u Beatty, Wozniak & Reese

347

April 5, 2011

The Honorable Patrick Leahy
Chairman

Senate Judiciary Committee
437 Russell Senate Building
Washington, DC 20510

The Honorable Chuck Grassley
Ranking Member
Senate Judiciary Committee
135 Hart Senate Office Building
Washington, DC 20510

Dear Chairman Leahy, Ranking Member Grassley, and Members of the Senate Judiciary Committee,

As a career national security professional and former Assistant Director of the FBI’s
Counterterrorism Division, I write in strong support of the nomination of Lisa Monaco for Assistant
Attorney General for National Security, Department of Justice.

I had the good fortune to work directly with Lisa Monaco while serving as an FBI executive. Lisa
is exceptionally well qualified to serve in the capacity of Assistant Attorney General for National
Security, and would bring to the position a keen and unique insight for the nuance of national security
matters. During the time I spent working directly with Lisa, I observed first hand her absolute dedication
to the fight to protect our national security. The creation of the NSD was a critical reform of the
Department of Justice, which was of course enacted through the help of this committee. The NSD has
subsequently evolved to play a significant role to protect our nation from a continuing barrage of national
security threats.

The successful leadership at the NSD is more important than ever to protect us from those
national security threats. I believe from personal observation that Lisa’s combination of prosecutorial and
operational experience gained throughout her career in the Department of Justice exceptionally suits her
to lead the Division. Her experience also contributes to her understanding of how agents, intelligence
analysts and prosecutors work together to detect, deter and disrupt national security threats. In a prior role
I served as Special Agent in Charge of the FBI National Security Division in New York City. It was here
that I learned the tremendous importance prosecutors make working together directly with and alongside
investigators. Lisa Monaco understands this integration, and its synergy with intelligence gathering and
the rule of law, and I believe she will excel in the position of Assistant Attorney General if confirmed.

She has my highest recommendation and support.

Sincerely,

Joseph Billy, Jr.

348

City of Wheat Ridge Municipal Building 7500 W. 29 u Avc. Wheat Ridge, CO 80033-8001 P: 303.237.2220 F: 303.235.2949

Daniel Brennan

Chief of Police

April 8, 2011

The Honorable Patrick Leahy
Chairman, Committee on the Judiciary
224 Diikscn Senate Office Building
Washington, DC 20510

The Honorable Chuck Grassley,

Ranking Member, Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Re: R. Brooke Jackson, Nominee for the U.S. District Court Bench in Colorado

Dear Chairman Leahy and Senator Grassley:

I am writing to encourage the Judiciary Committee to support President Obama’s
nomination of R. Brooke Jackson to the United States District Court for the District of
Colorado. Brooke is an exceptional jurist and lawyer in Colorado who would make be an
exceptional addition as a federal court judge.

As a law enforcement professional in Jefferson County, Colorado, I have known Brooke
Jackson for many years as the Chief Judge of the First Judicial District and as Chairman
for the Jefferson County Criminal Justice Strategic Planning Committee. The members of
my police department and I have found Brooke Jackson to a very intelligent lawyer and
jurist, as well as an exceptional communicator and a patient listener. My colleagues in
law enforcement and the criminal justice system in Jefferson County have found Brooke
Jackson to be supportive of law enforcement and criminal justice issues. He is fair,
thoughtful and consistently demonstrates the ability to ask the tough questions when
needed. He applies the law without bias.

In summary, I consider Brooke Jackson highly qualified for the federal bench and urge
you to move his nomination forward promptly.

Sincerely,

-

Daniel G: Brennan
Chief of Police

www.ci.wheatridge.axus

349

04/04/2011 12:52 FAX

@ 002/002

April 4, 2011

Hie Honorable Patrick J. Leahy, Chairman

The Honorable Charles W. GraS9ley, Ranking Member

United States Senate

Committee on the Judiciary

224 Dirkseu Senate Office Building

Washington, DC 20510

Dear Chairman Leahy and Ranking Member Grassley:

We write in strong support of the nomination of Lisa Monaco to serve as the Assistant Attorney
General of the National Security Division.

We have all personally worked with Lisa Monaco during our respective tenures with the
Department of Justice. We know her to be a first-rate lawyer with greai integrity and impeccable
judgment She is forthright hard working, and unwavering in her dedication to the mission of the
Department and to the rule of law.

Lisa Monaco’s broad range of substantive experience within the Department — as an Assistant
United States Attorney in the District of Columbia, as Chief of Staff to the Director of the Federal Bureau
of Investigation, as the Associate Deputy Attorney General with responsibility for national security, and
as the Principal Associate Deputy Attorney General — make her an ideal candidate for this critical
position.

We believe that, if confirmed, Lisa Monaco will serve our nation with distinction. We are
pleased to commend her to you without reservation.

Sincerely,

Benton J. Campbell

Former Interim United States Attorney,

Eastern District oFNew York

Wan J. Kim

Former Assistant Attorney General,
Civil Rights Division

Jeffrey A. Taylor

Former Unites! States Attorney,

District of Columbia

Matthew W. Friedrich

Former Acting Assistant Attorney General,

Criminal Division

Chuck Rosenberg

Former United States Attorney,

Eastern District of Virginia

Ronald J. Tenpas

Former Assistant Attorney General,
Environment and Natural Resources Division

350

Peter H. Coors
15205 West 32"'* Avenue
Golden, Colorado 80401

in

k:

March 21,2011 ~

5

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Chuck Grassley
Ranking Member
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 205 10

SUBJECT: R. BROOKE JACKSON

Dear Chairman Leahy and Senator Grassley:

I am writing in support of R. Brooke Jackson, a nominee to the United States District Court here
in Colorado.

Judge Jackson presided over a securities class action suit involving my family in 2004. I
observed his performance as a judge in that context, and studied through the 30+ page opinion
that he wrote.

While I don’t know what Judge Jackson’s political views might be, and they might be quite
different from mine, there is no one I would rather have on the federal bench here than Brooke
Jackson. I have no doubts about his fairness, ability to act without bias, or his judicial demeanor.

I urge your committee to consider his nomination promptly.

Sincerely, and with Best Regards,

Peter H. Coors

351

dlmirt at JVppejrls

STATE OF COLORADO
101 WEST COLFAX AVENUE, SUITE 800
DENVER, COLORADO 80203
{303} 861-1111

JANICE B. DAVIDSON

Chief Judge

March 29, 2011

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, D.C. 20510

Re: Nomination of Judge Brooke Jackson to the U.S. District
Court for the District of Colorado

Dear Senator Leahy:

I know Judge Jackson well, both personally and professionally.
Indeed, I have had the opportunity not only to know his work in my
role as an appellate judge, but have had the opportunity to observe
him in his courtroom, and to interact with him on the Colorado
Chief Judges’ Council, numerous professional committees, and
professional social events.

Although we judges are generally restrained in our demeanor, I
cannot help but express my wild enthusiasm about Judge
Jackson’s nomination. In my twenty-five years on the bench, I have
known and worked with many, many talented judges and attorneys,
but few as outstanding, in every respect, as he.

I think the world of him: he is such a good judge, and such a good
human being. He is kind and patient in his courtroom, treating

352

eveiyone with respect and dignity, and exuding a reassuring
message to anyone appearing in front of him that this is a wise,
unbiased, and thoughtful person who will thoroughly and fairly
decide your case. Although he can be extremely tough at times, it
is always obvious why that treatment is absolutely appropriate for
the situation.

I also deeply admire his legal scholarship and dedication to the
concept of equal justice under law. He devotes boundless energy,
not only to his own courtroom docket, but to the fair deliveiy of
justice, in his own judicial district, statewide, and beyond.

In sharing with you my unequivocal admiration for Judge Jackson,

I know that I am hardly alone. His reputation in the legal
community is outstanding. For all the right reasons, he engenders
widespread respect and affection.

I cannot think of a better choice for Colorado’s federal district court.
It would be of great benefit and service to my state, and a bow to
Lady Justice, if his nomination were to be confirmed.

Thank you for your attention to this matter,

Chief Judge, Colorado Court of Appeals

353

Committee on the Judiciary

NEW YORK

CITY BAR

ELIZABETH DONOGHUE

CHAIR

15 Maiden Lane, 17™ Floor
New York, NY 10038
Phone: (212) 349-3000
Fax: (212) 587-0744
edonoghue@hmgdjlaw.com

PETER M. KOUGASIAN
VICE CHAIR

80 Centre Street, Room 624
New York, NY 10013
Phone:(212)815-0495
Fax:(212)815-0498

pkougasian@specnarc.org
STEPHEN S. MADSEN

VICE CHAIR

825 Eighth Avenue, 4 1 st Floor
New York, NY 10019
Phone: (212)474-1886
Fax: (212) 474-3700
smadsen@cravath.com

MIRIAM M. BREIER
Secretary

1 56 Fifth Avenue, Suite 600
New York, New York 10010
Phone: (212) 791-3900
Fax: (646) 649-9650
mmb@bdulaw.com

STEPHANIE G. WHEELER

Secretary

125 Broad Street

New York, NY 10004

Phone: (2 12) 558-7384

Fax: (212)291-9166

wheelcrs@sullcrom.com

ELIZABETH DORFMAN
ADMINISTRATIVE ASSISTANT
42 W. 44™ Street
New York, NY 10036
PHONE:(2l2)3S2-6772
Fax: (212) 869-2145
cdorfman@nycbar. org

June 14, 2011

The Honorable Patrick J. Leahy
Chairman, Senate Judiciary Committee
433 Russell Senate Office Building
United States Senate
Washington, D.C. 20510

Dear Senator Leahy.

We are pleased to inform you that the Committee on the
Judiciary of the New York City Bar has found Edgardo Ramos, Esq.,
APPROVED for appointment to the United States District Court for
the Southern District of New York.

Very truly yours.

The Association of the Bar of the City of New York
42 West 44 a ‘ Street, New York, NY 10036-6689 www.nycbar.org

IJBistrut Court

^ FIRST JUDICIAL DISTRICT

LO (00 JEFFERSON COUNTY PARKWAY

MARGIE L ENQLIST <X GOLDEN, COLORADO 80401-6002

JUDGE 3 -

March 18, 2011

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Chuck Grassley
Ranking Member
Committee on the Judiciary .

224 Dirksen Senate Office Building
Washington, DC 205i0

Dear Chairman Leahy and Senator Grassley,

I write today on behalf of my colleague and Chief Judge, Brooke Jackson. I have observed Judge
Jackson's personality, work ethic and decision making from a variety of perspectives - as a law clerk (for
another District Judge), as a Deputy District Attorney, and as a District Court Judge.

Over the years have I seen that Judge Jackson has an even temperament, both on and off the bench. He
is kind and respectful to everyone in the building, from the janitorial staff to his fellow judges. Even
though he is carrying a full caseload on top of his duties as Chief Judge, he regularly visits the clerk's
office to make sure that they know he appreciates their efforts (and he recognizes them every year with
a luncheon hosted by the Judges). In trying economic times, he has had a very positive impact on
morale due to his efforts.

However kind his heart. Judge Jackson is certainly not soft on crime. As a prosecutor assigned to crimes
against children, I observed that he was very supportive of law enforcement efforts to abate crime and
had concern for public safety. Judge Jackson did not hesitate to impose lengthy prison sentences (which
were often indeterminate) in appropriate cases. He displayed appropriate empathy for victims and their
families, but did not rule based upon emotion - he applied the law in a fair and evenhanded manner to
all who appeared before him. He continues to conduct himself in that manner to this day.

As a fellow judge, I have been privileged to work with one of the most ethical, well-respected,
intelligent, and thoughtful members of the Colorado legal community. Although I will hate to see him
leave our district, I know that he will make a significant positive contribution to the U.S. District Court
bench. Your gain is truly our loss.

Brownstein I Hyatt
FarberlSehreek

Man* 23, 2011

The Honorable Senator Patrick Leahy, Chairma^:
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington DC 2Q51Q

The Honorable Senator ChuGk Grassfey, Ranking Member

Committee on the Judiciary

224 Dirksen Senate Office Building

Washington DC 20510

RE: Judge R. Brooke Jackson

Gentlemen:

Michael F. Feeley
Attorney at Law
303.223.1237 tel
303.223.8037 fax
mfeeley@bhfe.com

It is with pleasure I write in support of the nomination of Judge R. Brooke Jackson for confirmation to
the bench of United States District Court for the District of Colorado. Judge Jackson and I live in the
same Jefferson County, Colorado community and I have known Brooke for more than 20 years as an
attorney, judge and neighbor.

Judge Jackson practiced law at the highest level for 25 years before his appointment to the state court
bench. Brooke was a lawyers' lawyer who set a high standard for impeccable integrity and professional
ability. I had the opportunity (some might say misfortune) to appear opposite Brooke and t marveled at
his courtesy and coltegiaiity as he taught me a thing or two about how to conduct yourself in a
courtroom.

On the Colorado First Judicial District Court bench, Judge Jackson addressed a complete array of
judicial matters and every attorney who had a chance to appear before him, as I did. appreciated his
judicial demeanor and commitment to a fair result. Through a legislative office I held for a period of
time, I observed Judge Jackson as Chief Judge of the First Judicial District where he implemented
innovative court and docket management practices during a time of fairly drastic budget cuts. Many of
his practices were adopted by other judicial districts throughout Colorado.

The federal judiciary and the citizens of Colorado will be well-served with Judge Jackson's continuation
of his public service on the United States District Court Bench.

9999911 306^1518731.1

410 Seventeenth Street, Suite 2200 | Denver, CO 80202-4432
Browns tein Hyatt Buber Sdweck, llp j bkfscom

1

303.223.1100 Ifl
303.223.1111

356

Marcy G. Glenn

Phone 303-295-8320
^ Fa* 303-295-8261
Vj mg!enn@holiandharLcom
5 >

e-4

March 31, 2011 S

The Honorable Patrick Leahy The Honorable cS^ck Grassley

Chairman Ranking Member

Committee on the Judiciary Committee on the Judiciary

224 Dirksen Senate Office Building 224 Dirksen Senate Office Building

Washington, DC 20510 Washington, DC 20510

Re: R. Brooke Jackson - Nominee for U.S. District Court (D. Colo.)

Dear Chairman Leahy and Senator Grassley:

I write in support of Judge R. Brooke Jackson, who has been nominated for the vacant seat on
the United States District Court for the District of Colorado. 1 support Judge Jackson’s
nomination because he is an exceedingly bright, hard-working, and fair man, he was an
Outstanding trial attorney, he has distinguished himself as state judge, and 1 am confident he
would contribute mightily to the federal judiciary . .

I have known Judge Jackson for over 28 -years, since 1 began working as a young associate.at'
Holland & Hart, where Judge Jackson spent his career until his appointment to the state trial
bench in 1998. We tried several large and complex cases together and also worked closely on a
number of appeals. Judge Jackson is simply among the very best lawyers 1 know. He begins
with the blessing of being very, very smart. He combines his God-given intelligence with
extraordinary discipline and organization, a true thirst for knowledge, and an ability to focus on
the big-picture, even as he pays studious attention to details. When Judge Jackson analyzes
issues, he also brings to bear decades of experience and a healthy dose of pragmatism; he is
careful and deliberate, but he does not shy away from difficult and even unpopular decisions.

On a personal level. Judge Jackson displays absolute integrity. Over the course of our practice
together, we confronted our share of ethical issues, and 1 was consistently impressed by his
approach: Protea the client, follow the rules, and do the right thing. Judge Jackson cares deeply
about people. He is devoted to his family. And he is a true public servant. He chose to leave the
lucrative practice of law at Holland & Hart because he yearned to contribute to a society that had
given so much to him and that so needed his talents. His tenure on the Jefferson County District
Court has confirmed his dedication to an impartial application of the law. He has a well-
deserved reputation as among the very best of Colorado’s jurists.

Finally, as a former law cleric fora now-senior judge on the federal district court in Colorado,
and one who has praaiced in that court for decades and knows many of its judges, I believe that
Judge Jackson would add greatly to the overall strength, reputation, and esprit de corps of that
court - which has suffered from the recent untimely death of one judge, the scandal-ridden

HOLLAND &.HARTI

IE LAW OUT WEST

Holland A Hart m-

Phone [303j 29S-BOOO Fas (303] 295-8261 www.hottendhart.cori

555 17th Street Suite 3200 Denver, CO 60202 Mailing Address PO. Box 8749 Denver, CO 80201-6749

Aspen Billings Boise Boulder Cheyenne Colorado Springs Denver DenverTech Center Jackson Hole Salt Lake City Santa Fe Washington, D.C O

357

March 21, 2011
Page 2

resignation of another, and the burden of, until recently, two long-unfilled vacancies. I urge you
to move Judge Jackson’s name forward for hearing at the next Senate Judiciary Committee
hearing, which I understand will be on April 1 3.

Please do not hesitate to contact me if I can provide further information. And, Senator Leahy,
please give my regards to Vermont. 1 am a Dartmouth alum and we own a home in Norwich but,
sadly, our visits are infrequent

HOLLAND &HART.

THE LAW OUT WEST

Sincerely,

Marcy Glenn
of Holland & Hart lu>

MGGtlmp

5061832J.DOCX

358

Statement of Senator Chuck Grassley
Ranking Member
Committee on the Judiciary
United States Senate

Before the Committee on the Judiciary

On the Nominations of:

Henry F. Floyd, to be United States Circuit Judge for the Fourth Circuit
Nelva G. Ramos, to be United States District Judge for the Southern District of Texas
Richard B. Jackson, to be United States District Judge for the District of Colorado
Sara L. Darrow, to be United States District Judge for the Central District of Illinois
Lisa O. Monaco, to be Assistant Attorney General, National Security Division

April 13,2011

Mr. Chairman:

On today's agenda, we have a nominee to be a United States Circuit Judge for the Fourth
Circuit, and three to be District Court Judges, in addition we will hear from the nominee to
be an Assistant Attorney General, heading the National Security Division of the Department
of Justice. I join you in welcoming the nominees as well as their families and friends.

Ms. Lisa Monaco is nominated to be Assistant Attorney General heading the National
Security Division of the Department of Justice. The mission of the National Security
Division (NSDJ of the Department of Justice is to carry out the Department’s highest
priority - to combat terrorism and other threats to national security. The Division was
created in 2006 as part of the PATRIOT Act reauthorization. Much of the reorganization
creating the Division was to promote a unified approach in accomplishing its mission. The
structure of the Division was designed to ensure greater coordination between prosecutors

359

and law enforcement agencies, on the one hand, and the intelligence community, on the
other.

Tearing down this wall, enhancing investigatory tools, streamlining national security
investigations, and modernizing investigative authorities to take account of new and
emerging technologies are some of the reforms we have made. But there is work to be
done, as we recently heard from the FBI Director. Reauthorization of critical tools must be
a priority of this committee.

I will continue to work with the Chairman in pursuit of a permanent extension of the "lone
wolf' provision, of the "roving" electronic surveillance provision, and of the "business
records” provision. In addition, I will work to preserve and strengthen other tools available
to our national security and law enforcement professionals.

In addition, we are considering four judicial nominations today. Henry Floyd, a sitting
United States District judge in South Carolina, is nominated to be U.S. Circuit Judge for the
Fourth Circuit. We have already confirmed four of President Obama's nominees to the
Fourth Circuit. That is as many as were confirmed to that Circuit during the two terms of
President Bush. I would note that eight of President Bush’s nominees to the Fourth Circuit
were returned to the President, receiving no up or down vote by the Senate.

We are also considering three District Court nominations. They are Sara Lynn Darrow, to
be U.S. District Judge for the Central District of Illinois; Richard B. Jackson, for the District of
Colorado; and Nelva G. Ramos, for the Southern District of Texas. All of these vacancies are
or have been declared to be judicial emergencies. 1 would note that the Colorado vacancy
could have been filled years ago. Gregory E. Goldberg was nominated to this seat in July of
2008 by President Bush. As with too many of his nominees, the Committee took no action
on this nomination.

Mr. Chairman, I will not repeat the biographical information on our nominees. I commend
each of them for their prior public service and for their willingness to serve. I ask

2

360

unanimous consent that the balance of my statement be entered into the record, 1 look
forward to reviewing the testimony.

Henry F, Floyd is nominated to be United States Circuit Judge for the Fourth Circuit, Judge
Floyd received is B. A. degree from Wofford College in 1970. He graduated from the
University of South Carolina School of Law in 1973, after which he began his private law
practice. In 1974, Judge Floyd formed the law firm of Floyd & Weimaker, which focused on
civil, criminal, and domestic litigation in addition to deeds, wills, estates, and real property
closings. In 1978, Floyd & Weimaker merged with Acker & Acker, a firm focusing on
property, probate, trust and commercial law. From 1986 to 1992, while continuing his full-
time law partnership, he served as attorney for Pickens County.

In 1992, Judge Floyd was elected by the South Carolina General Assembly to serve as a
Circuit Court Judge for the Thirteenth Judicial Circuit. In September, 2003 he was
confirmed by the Senate and appointed by President Bush to be United States District Judge
for the District of South Carolina.

Sara Lynn Darrow is nominated to be United States District Judge for the Central District of
Illinois. She received her B.S. degree from Marquette University in 1992 and a J.D. degree
from St. Louis University School of Law in 1997.

From 1997 to 1998, Mrs, Darrow worked in the Law Offices of Clarence Darrow, a small
general practice firm in Rock Island, Illinois. In 1999, Ms. Darrow joined the Henry County
(Illinois) State's Attorney's Office as an Assistant State’s Attorney. She began handling
juvenile, misdemeanor, and felony traffic cases. Upon promotion in 2000, she handled
felony cases and serious juvenile abuse cases. She prosecuted a wide range of cases such as
gun, burglary, rape, battery, drug, and arson offenses. She also represented the county in
civil matters such as tax sales and small claims.

In 2003, Ms. Darrow began work as an Assistant United States Attorney in the Office of the
United States Attorney for the Central District of Illinois. She prosecutes federal crimes

3

361

including drug conspiracy, gun, racketeering, child exploitation, fraud, and bankruptcy. She
is responsible for all aspects of pre-trial litigation in addition to conducting trials. She has
prosecuted approximately 300 defendants and tried 10 cases to verdict before a jury.
Richard Brooke Jackson is nominated to be United States District Judge for the District of
Colorado. Judge Jackson received his A.B. degree, magna cum laude, from Dartmouth
College in 1969 and his J.D. degree, cum laude, from Harvard Law School in 1972.

Following law school. Judge Jackson joined the firm of Holland & Hart as an associate,
where he focused on a combination of commercial litigation and personal injury litigation,
representing both plaintiffs and defendants. In 1978, he became a partner and opened the
Washington, D.C. office of the firm. Additionally, he served on a number of committees
within the firm and was Chairperson of the Litigation Department.

in 1998, he was appointed to serve as District Judge for the First Judicial District of
Colorado. As a District Judge, he handled a mixed docket of criminal, civil, and domestic
relations cases. In 2003, he was appointed Chief Judge. In addition to his full caseload, he
handles substantial administrative duties of the court. During his service, Judge Jackson
has served on many committees within the Judicial Branch, including a committee that
reviewed, modified and proposed to the Supreme Court, Colorado's version of the Model
Code of Judicial Discipline.

Nelva Gonzalez Ramos is nominated to be United States District Judge for the Southern
District of Texas. She received a B.S. degree, summa cum laude, from Southwest Texas State
University in 1987 and a J.D. degree, with honors, from the University of Texas School of
Law in 1991.

After graduation from law school, Judge Ramos began her career as an attorney at Meredith
& Donnelly in Corpus Christi, Texas. She worked primarily in personal injury litigation,
employment litigation, and insurance defense. In 1997, she resigned from the firm to enter
duty as a municipal court judge. During her campaign for District Court Judge during 1999
to 2000, she worked as a solo practitioner.

4

362

Judge Ramos was appointed as a municipal court judge for Corpus Christi in 1997, where
she had a criminal docket. She presided over 500 cases that went to verdict or judgment.
When she announced her candidacy for District Court Judge in 1999, she resigned from this
position as required by the city charter. In 2001 she was elected as District Court judge for
the 347 th judicial District. She was reelected in 2004 and in 2008. As District Court judge,
she has presided over 1200 cases that went to verdict or judgment. While serving as a
District Court Judge she helped establish a Domestic Violence Court, and served as the
Local Administrative judge for the Nueces County District Courts.

Lisa O. Monaco is nominated to be an Assistant Attorney General. If confirmed, she will
head the National Security Division within the United States Department of Justice. Ms.
Monaco received a B.A. degree from Harvard University in 1990. She received her J.D.
degree from the University of Chicago Law School in 1997.

Upon graduation from Law School, Ms. Monaco was a law clerk forjudge jane R. Roth on
the United States Court of Appeals for the Third Circuit. Other than her brief stint as a law
clerk, Ms. Monaco has worked for the Department of Justice in one capacity or another for
her entire career. Beginning in September of 1998 she served as a Counsel to the Attorney
General. There she provided information and staff assistance on a range of criminal justice
issues. In January of 2001 she became an Assistant United States Attorney in the United
States Attorney's Office for the District of Columbia. She served in that capacity until 2007.
During this time her work focused entirely on criminal matters. While an Assistant United
States Attorney she served from May 2004 to January 2006 on the Enron Task Force. In
that capacity she participated in the investigation and prosecution of Enron executives.

In January of 2006, she was detailed to the Federal Bureau of Investigation where she
served as Special Counsel to the Director. She eventually joined the FBI on a permanent
basis as Special Counsel to the Director. She later served as the Deputy Chief of Staff and
Counselor and then as Chief of Staff to the Director. In 2009, she began work as an
Associate Deputy Attorney General where she assisted in the supervision of federal
criminal and civil matters related to national security. In 2010, she became Acting

5

363

Principal Associate Deputy Attorney General, her current position. As the Principal
Associate Deputy Attorney General she supervises the staff of lawyers in the Office of the
Deputy Attorney General and assists the Deputy Attorney General in overseeing the
operations of the Department.

6

364

Haddon, Morgan and Foreman, p.c.

Harold A- Haddon

HADDON

MORGAN

FOREMAN

March 29, 2011

150 East 10th Avenue
Denver, Colorado B0203
ph 303 831 7364 fx 303 832 2628
hhaddon@hmfiaw.com

The Honorable Patrick Leahy
Chairman, Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, D.C. 20510

The Honorable Charles Grassley

Ranking Member, Committee on the Judiciary

United States Senate

224 Dirksen Senate Office Building

Washington, DC 20510

Dear Chairman Leahy and Senator Grassley:

I write to express my support for the nomination of Judge Brooke Jackson to be a
United States District Judge for the District of Colorado. I am a lawyer presently
engaged in the private practice of law in Denver, Colorado representing individuals
and corporations involved in criminal and civil litigation. I have served as a special
prosecutor for the Colorado State Grand Jury and as the Chief Trial Deputy for the
Colorado State Public Defender’s office. I have also served on four different
Colorado federal district court nominating commissions spanning the years 1975 to
2009. I chaired the commission appointed by Senator Ben Campbell in 1993 and I
co-chaired the commission appointed by Senators Udall and Bennet in 2009.

I have appeared before Judge Jackson in several difficult and complex state court
cases. While he has often ruled against positions I have advocated, his decisions have
always been thoughtful, thorough and fair. He rules expeditiously but is still able to
fully analyze complex issues. His demeanor is uniformly respectful to all parties,
witnesses and attorneys. Unsuccessful litigants in his courtroom have commented to
me that they came away from the experience believing that they had been treated
fairly.

Judge Jackson has earned the universal respect of the prosecutors, police agencies and
practicing lawyers in his state judicial district. He has done so because he possesses
the extraordinary attributes found in great trial judges: deep intellect, hard work,
patience and respect for all the competing litigants who appear in his court every day.
He can be a tough judge in hard cases but, in the tradition of former Chief Judge
Richard P. Matsch (D. Colo.), he unfailingly treats even the most difficult litigants
with dignity.

365

The Honorable Patrick Leahy
The Honorable Charles Grassley
March 29, 2011
Page 2

Judge Jackson will be an exceptional United States District Judge and I highly
commend him to you as worthy of confirmation.

Sincerely,

cl $ <1 d

Harold A. Haddon

HAH/sh

366

Senator Patrick Leahy April 8, 2011

Chairman

Senate Judiciary Committee
437 Russell Senate Building
Washington, D.C. 20510

Senator Chuck Grassley
Ranking Member
Senate Judiciary Committee
135 Hart Senate Office Building
Washington, D.C. 20510

Dear Chairman Leahy and Ranking Member Grassley,

It is an honor and pleasure for me to unconditionally support the nomination of Lisa Monaco
for the position of Assistant Attorney General of the Department of Justice National Security
Division. During my tenure as FBI Assistant Director for the Counterterrorism Division and
subsequently as the Executive Assistant Director for the National Security Branch, I worked with
Ms. Monaco on a day-to-day basis. Ms. Monaco was detailed to the FBI as Special Counsel and
then Chief of Staff for Director Robert Mueller. Not only did she work with FBI Agents and
Analysts, but she skillfully interacted with other agencies in the U.S. Intelligence Community as
well as with our international partners to resolve terrorism threats facing our country. In this
capacity, we enjoyed a close and productive working relationship. I found her to be an
intelligent, well prepared, and a dedicated professional, tirelessly focused on our mission. Ms.
Monaco can be credited with helping to successfully safeguard national security in a volatile
and dangerous period when tenacity, adaptability, and precision decision-making were
paramount. Because she consistently fulfilled these requirements, she was considered a valued
member of our team.

Ms, Monaco's Department of Justice experience as a career prosecutor and her understanding
of the FBI National Security Branch mission and operations make her exceptionally well
qualified to lead the National Security Division. I highly recommend her for this important
position.

Sincerely,

Willie T. Hulon

367

Senator Hutchison Statement
Confirmation Hearing for Nelva Gonzales Ramos
April 13, 2011

Thank you very much, Mr. Chairman.

It is my pleasure to introduce Nelva Gonzales Ramos, who has been nominated to serve
as a district judge for the Southern District in Corpus Christi, Texas. Judge Ramos
graduated Summa Cum Laude at Texas State University in San Marcos with a degree in
education. She then went on to receive her Juris Doctor from my alma mater, the
University of Texas School of Law, where she again graduated with honors.

After growing up in Port Lavaca, Texas, Judge Ramos now finds herself right down the
road in Nueces County, Texas, serving as the 347 lh District Court judge for the last ten
years. Judge Ramos began her judicial career in 1997, serving as a municipal court judge
in Corpus Christi.

During these years. Judge Ramos has been routinely recognized by the members of the
Corpus Christi Bar Association as an outstanding district judge. She has gained the
respect of her colleagues because of her demeanor on the bench. Judge Ramos is seen as
fair and thoughtful and is often commended by her colleagues for her skilled legal mind.

I am equally as convinced that Judge Ramos has a solid understanding of the law and is
well qualified to handle the daily challenges of being a federal district judge in South
Texas. She will do well succeeding Judge Hayden Head.

I recommend, Nelva Gonzales Ramos, highly to you and hope that we can have an
expeditious confirmation of her nomination.

368

Statement of Senator John F. Kerry

Hearing on the Nomination of Lisa Monaco to be Assistant Attorney Genera]

April 13, 2011

It is my pleasure to offer my support for Lisa Monaco, the President’s nominee to be the
Assistant Attorney General for the National Security Division. A Massachusetts native and a
public servant through and through, Lisa is a qualified and well-regarded choice for this post.

Lisa was bom in Boston, grew up in Newton, and excelled at Harvard. Her parents
Dr. Anthony Monaco and Mary Lou Monaco, still live in Newton and I am confident they are
incredibly proud of the tough prosecutor Lisa has become.

From her time as a federal criminal prosecutor, where she took on Enron, to her work in the
FBI Director’s office in the difficult and decisive days following the 9/1 1 attacks, Lisa has
doggedly pursued justice and dedicated herself to strengthening the safety and security of our
nation. She has served as Chief of Staff to FBI Director Robert Mueller, was Deputy Attorney
General James M. Cole's primary adviser on national security issues, and currently is the
principal associate deputy attorney general at the Justice Department.

Lisa's achievements belie her age; she has impressed leaders from both sides of the aisle with
her tenacity and acumen. Michael Mukasey, Attorney General under President George W. Bush
has said this of Lisa, “I believe that she has both sound judgment and a keen understanding of
national security law . . . [and] is well qualified to serve in what is a critical position for both the
Department and our Country.” FBI Director Mueller had great faith in her when he promoted
her from within the FBI ranks to be his chief of staff before the age of 40.

If confirmed Lisa will be the head of the National, Security Division, overseeing cases that
affect national security and foreign relations. As a former prosecutor and as the Chairman of the
Foreign Relations Committee I can tell you that I can think of no time in recently history where
this country has faced greater challenges in those vital arenas. At this time of great peril I am
confident that Lisa will do a superb job in protecting our country.

I enthusiastically support Lisa Monaco's nomination for the position of Assistant Attorney
General for the National Security Division and hope for her swift confirmation to this critical
post.

369

The Honorable Patrick Leahy March 25. 201 1

Chairman

Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington. D.C. 20510

Dear Senator Leahy,

As the former criminal justice and legal affairs reporter in federal and state courts for the
Rocky Mountain News in Denver for more than 20 years, I have covered cases in the court of
Jefferson County District Judge Brooke Jackson for many years. I know that Judge Jackson has
the support of many members of the legal community, but perhaps It is helpful to also have the
perspective of a layperson who has observed Judge Jackson as a representative of the
community. It is my honor to write this letter in support of Judge Jackson’s nomination to the
United States District Court for the District of Colorado.

Judge Jackson has a reputation for fairness, integrity, unbiased rulings and true concern
for the people who pass through his court. To sit In his court is to team about the American
system of justice. He is patient and possesses a judicial temperament that allows him to handle
tense situations in his court with humor and ease. He respects and supports the law
enforcement community and is respected by members of that community in return.

As a journalist who covered federal courts and agencies for many years, I appreciate the
efficiency, speed, promptness, decorum, judicial expertise and competence of the federal
courts. Judge Jackson has always run his court as a federal judge does. His rulings are dear
and he takes time to explain them, particularly when members of the public are in the gallery.
However, he runs a tight ship, moves cases along and puts up with no disrespect or
incompetence in his court He is decisive and tough in handling the most sensitive and
controversial cases.

Over the years, I have observed Judge Jackson preside over some very controversial
cases, among them the aftermath of the murder of students at Columbine High School and the
resulting painstaking review of documents and autopsy reports to see what should become
public. Because of the way in which Judge Jackson handled this case and explained his
actions, even those who disagreed with his rulings knew by the way the judge conducted
himself in these proceedings that his goal was to balance the Interest of the public with the
privacy interest of the victims and the families. It was clear that his ultimate goal was justice, as
it is in each case that comes before him.

For all of these reasons, I believe that Judge Jackson would make an excellent federal
judge for Colorado. Thank you for considering my views.

Sincefely,

Sue Lindsay
13959 W. Cedar Place
Golden, CO 80401

303 - 279-2668

sUeHndsay@comcast.net

370

John R. MaxfiekJ P.C.
Phone 303-295-8341
Fa* 303-295-8261
jma^ef d@hoil0ndhart.com

March 18, 2011

Holland &harx,

-r

■$>

c—t

oc

cc

sr -

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Chuck Grassley
Ranking Member
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

RE: Nomination of R. Brooke Jackson to the
Federal District Court Bench

Dear Chairman Leahy and Senator Grassley:

This letter is in support of the Honorable R. Brooke Jackson’s nomination to the Federal
district court bench. I am a partner in the law firm of Holland & Hart llp. I have known Judge
Jackson since I started my career at Holland & Hart approximately 28 years ago. Judge Jackson
was, and continues to be, a mentor and friend to me.

There is no one 1 would recommend more highly to the Federal bench than Judge
Jackson. He personifies the integrity, toughness, fairness and respect for the law that are
essential to the day-to-day duties and demands placed upon members of the Federal judiciary.

For two of our many years together at Holland & Hart, I had the privilege of serving on
our law firm’s five-person management committee with Judge Jackson. We faced a number of
difficult decisions together. Our decisions would often have significant impact on the
individuals involved. Judge Jackson always approached those decisions with an open mind and
a deep and abiding respect for the fact that our decisions would significantly impact people.
More than anyone else on the management committee. Judge Jackson always insisted that we
spend whatever time necessary to understand the relevant facts, and then to look at the particular
situation from different angles and perspectives. Only then, did Judge Jackson bring his
formidable, intellect and ju4gjnent to bear on the situation. In making these decisions. Judge
Jackson was extremely impartial. It didn’t matter whether the difficult issue at hand involved a
powerful partner or a staff person. Judge Jackson always dealt with the matter, with an even
temperament, and willingness and toughness to resolve the issue fairly and impartially. These
same characteristics are the hallmarks of Judge Jackson’s service in the Colorado state judiciary.

Hoi land & Hart uj>

Phone [303] 295-0000 Fa* [303] 295-&2S1 www-holtontaiwttom

555 17th Street Sura? 3200 Denver, CO 80202 Mailing Address P.O. Box 8749 Denver, CO 80201-8749

Denver Aspen Boulder Colorado Springs Denver Tech Center S flings Boise Cheyenne Jackson Hole Las Vegas Reno Salt Lake City Santa Fe Washington, DC O

371

HOLLAND&HARX, ^

The Honorable Patrick Leahy
The Honorable Chuck Grassley
March 18, 2011
Page 2

When Judge Jackson left our law firm to become a state district court judge in Jefferson
County, Colorado, he was one of the most revered partners in the history of our firm. He was
then, and continues to be, a huge loss to our law firm, not only because he was one of Colorado’s
best trial lawyers, but also because of the deep regard and affection that his partners at Holland &
Hart have for him.

When 1 learned of Judge Jackson’s decision to leave the practice of law at the pinnacle of
his career to join the judiciary, I asked him why. He simply said that this was the best way he
could serve his community.

I would trust Judge Jackson with my life and there is no one whose judgment I respect
more. I can think of no one who will better serve the United States and its citizens as a member
ofthe Federal judiciary than the Honorable R. Brooke Jackson.

Respectfully submitted.

bhn R. Maxfield
6f Holland & Hart uj"

5<KI030_1JDOCX

372

U.S. DEPARTMENT OF JUSTICE
John F. Walsh

United States Attorney
District of Colorado

AUSA Name: MJ Menendez 1225 Seventeenth Street, Suite 700 (303) 454-0100

Title: Assistant United States Attorney Seventeenth Street Plaza (FAX) (303) 454-0400

Division: OCDETF Unit Denver, Colorado 80202

March 28, 2011

The Honorable Patrick Leahy
Committee on Judiciary, Chairman
United States Senate
224 Dirksen Senate Office Building
Washington, D.C. 205 1 0

Dear Senator Leahy:

I am truly honored and privileged to write to you on behalf of the nomination of the Honorable
Brooke Jackson for the federal bench in the District of Colorado. My name is M.J. Menendez. While
others will write with more distinguished resumes, 1 write with a unique vantage point on Judge
Jackson. I know Judge Jackson from serving in his jurisdiction for nine and a half years as an Deputy
Jefferson County District Attorney. I then came to the Office of the United States Attorney from 2003
to 2006. In 2006, 1 was appointed to the Jefferson County District Court bench where His Honor Judge
Jackson serves as the presiding judge. In my life, Brooke Jackson has acted as legal scholar, wise
counselor, mentor, trusted friend and good neighbor, as our chambers were next door to each other. In
mid-2009, 1 returned to the Office of the United States Attorney for the District of Colorado as Deputy
Chief of the Organized Crime Drug Enforcement Task Force. If Judge Jackson is appointed, I will
come full circle in practicing in front of him once again. Please forgive the length of this letter, but I
believe recounting my many and varied experiences with Brooke Jackson will assist your decision-
making process.

As a Deputy District Attorney, I tried more cases in front of Judge Jackson than any other judge
in the District, and I watched Judge Jackson preside over homicides and

death penalty litigation. The first aspect of his judicial persona that you should know about is that he
makes the hard decisions. I suppose that sounds simple enough; after all, he is a judge. Such is not the
case. Announcing a lengthy prison sentence in a criminal case, or ruling on dispositive motions In a
multi-million dollar civil case are extremely tough tasks. Some judges just can’t quit ruminating,
thinking one more case

or one more discussion will definitively settle the matter to be decided. Judge Jackson utilizes his

373

razor-sharp intellect, coupled with thorough understanding of the law, sufficient humility to take
additional time to research and ask questions to hone issues, and innate sense of right and wrong to
carefully consider all information. Thus, he has the ability to make difficult decisions that are legally
and factually accurate and sound, and he actually does so-he decides, and moves on. I recall one case
when I was a domestic violence litigator wherein a victim came to the Court to lift a restraining order
against the judgment of the Office of the District Attorney in a case of extreme violence. Judge Jackson
listened carefully to the victim, considered all information, and refused to lift the order. He treated the
victim with compassion, generosity of time and talent, and empathy, but he remained firm as the victim
wailed, screamed, cursed him and ran toward him on the bench. The judge didn’t flinch, but outwardly
remained composed and gentile in a situation that must have taxed his soul. The litigation proceeded.
The case was fairly tried, and the domestic violence perpetrator was sent to prison. About six months
later, the victim reappeared and told Judge Jackson that he had saved her life, as she had only come
asking for a lifting of the order after her perpetrator threatened to kill her. The event 1 recount is one of
countless episodes wherein Judge Jackson acted with courage and strength in the face of hostility and
pressure.

Judge Jackson’s long history of civil practice as an attorney, and criminal experience from
presiding over mixed dockets in Jefferson County, make him a particularly appealing candidate for the
federal bench. Others will write detailing Judge Jackson’s monumental successes as civil advocate and
practitioner. I know of his acumen in civil law from collecting and reading his judicial opinions which
I kept on my chamber’s desk for ready reference. I also regularly sought Judge Jackson for his patient
tutoring and guidance on complex on civil issues. In preparation to take the bench between
appointment in September, 2006 and assumption in January 2007, 1 spent days watehing Judge Jackson
preside over a complex civil trial. His courtesy for parties, concern for jurors, and due regard for the
advocacy strategies of attorneys was unfailing, yet he commanded his courtroom with polite authority
and dignity. Judge Jackson is a prolific writer, and he has a work ethic to meet his personal standards
regarding written work. On one occasion, T was contemplating whether to write a lengthy opinion in a
marital dissolution involving child custody, or whether I could simply and easily rule from the bench.
Brooke asked, “MJ, which avenue will make the

litigants understand that the thought and care in your decision? Which avenue will make the litigants
understand they were heard, and bring the difficult issues to closure?” I wrote the decision.

The act of judging is largely reactive in nature, but not for Brooke. In his
position as presiding Judge, he chairs the Criminal Justice Strategic Planning Committee in Jefferson
County, comprised of the jurisdiction’s police chiefs, elected District Attorney, Chief Public Defender,
Superintendent of Schools, victim witness advocates, parole, probation, elected city council members,
and other leaders of the citizenry. The goal of the committee is to work to better the justice system by
taking a proactive approach to community issues, such as education, probation supervision, funding for
mental health resources in the jail, and bail reform; just to name a few. Judge Jackson is one of the
most highly regarded and trusted public servants and leaders in Jefferson County, Colorado, and his
loss to the jurisdiction will be keenly felt.

The Jefferson County bench is the best state court bench in Colorado. I know because I had the
privilege to sit among them. I left because my passion is criminal law, and I thought civil litigants
deserved someone who cared about their cases as much as I care about the criminal law. Watching and

374

listening to Judge Jackson, with his calm demeanor, ability to put up with attorney nonsense and
bickering, and unfailing dignity in all matters-minute and monumental-made me know that I should
return to my beloved US Attorney’s Office and the work I do best. I have practiced, and now practice
in United States District Court in Colorado, in front of a bench that rules with patience, tolerance,
soundness of legal reasoning and judgment, courtesy, and a work ethic that never flags or falters. Judge
Jackson’s is a “fire-tested” judicial officer who has earned his the right to be one of them. He will
make you proud of your decision to appoint him, and he will serve the United States with honor and
dignity, just as he has served Colorado for so many years. Thank you so much for consideration of my
thoughts.

Respectfully Submitted,

S / MJ Menendez

MJ Menendez

Deputy Chief -OCDETF

Office of the United States Attorney

1225 17* Street, Suite 700

Denver, Colorado 80202

(720)281-2002

m.j.menendez@usdoj.gov

375

HOLLAND &.HART,

tH

3a ne Michaels

Phone 303-295-8162
Fax 303-295-8261

jrrtchaeistghollandhartcoTn

ic.

hSarch 18, 2011

The Honorable Patrick Leaky
Chairman

Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

e" 5 The Honorable Chuck Grassley
<r Ranking Member

Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Chairman Leahy and Senator Grassley:

As a colleague and former law partner of the Honorable Brooke Jackson, Chief Judge of
the Jefferson County District Court, I am writing this letter to urge the Senate Judiciary
Committee to expedite Judge Jackson’s nomination to serve as a United States District Judge for
the District of Colorado.

Judge Jackson’s credentials are impeccable. He is extremely intelligent, efficient, and
fair-minded. It would be difficult to find many candidates with Judge Jackson’s legal acumen.
Hehas'bipartisan support from an overwhelming number of lawyers, jurists and litigants in
Colorado. Judge Jackson’s even temperament and judicial demeanor make him a particularly
worthy candidate for the federal judiciary. He understands complex legal issues. He is tough on
crime and supportive of law enforcement. He is able to analyze complex factual and legal issues
and to apply the law fairly, without prejudice or preconceived notions.

Our federal court is swamped with a backlog that is negatively impacting the legal
community and the public at large in Colorado. We need to have an exceptionally well qualified
judge appointed to the U.S. District Court for the District of Colorado as soon as possible. 1
know that 1 speak for all of my partners at Holland & Hart and most other lawyers and judges in
the legal community in saying that Judge Jackson is extremely well qualified for the federal
bench and should be confirmed promptly. I urge you to expedite his nomination and press this
matter for hearing on April 1 3th.

If I can be of further assistance or answer any additional questions, I would be pleased to

do so.

Very truly yours,

I'CUjujUj

ne Michaels
'of Holland & Hart llp

5060S94_t.d0<:x

376

^Sheriff

Jefferson

County

Ted Mink, Sheriff
Ray Fleer, Undersherjff

200 Jefferson County Parkway . Golden, Colorado 80401-2697 * 303-277-0211 * fax 303-271-5307 ♦ www.jhffcosheriff.com

March 30, 20 H

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, D.C. 20510

Senator Leahy,

I am writing to you, in your role as Chair of the Committee on the Judiciary, to express my full
support of Jefferson County District Court Judge Brooke Jackson’s nomination to the United
States District Court for the District of Colorado.

As the duly elected sheriff of Jefferson County, Colorado, with nearly 40 years of law
enforcement experience, 1 believe I have a qualified perspective of the judiciary and the qualities
necessary to be successful on the bench. Since being appointed to the District Court for
Colorado’s First Judicial District in 1 998, Brooke Jackson has exhibited all the qualities and traits
not only as a judge, but as a person, that in my opinion would make him an exceptional member
of the United States District Court bench. He has demonstrated decisiveness and toughness when
appropriate, and as such has developed strong support in the legal and law enforcement
community.

In the aftermath of the 1999 Columbine High School shootings in Jefferson County, a series of
complex cases and legal issues came before his court. In dealing with these issues Judge Jackson
displayed a sense of fairness, dignity, respect and compassion for all those involved,

Brooke Jackson has always shown respect and been supportive of law enforcement without losing
sight of his obligation to ensure justice will be served.

I wholeheartedly support the nomination of Brooke Jackson to the United States District Court for
the District of Colorado.

Respectfully,

"TB.me

Ted Mink

Jefferson County Sheriff

377

Nomination of Lisa Monaco as Assistant Attorney General for National Security,

Department of Justice
Statement of Support

I am writing this letter to support the nomination of Lisa Monaco as Assistant Attorney
General for National Security. Ms. Monaco and I first met in 2005, when I joined the FBI
from CIA as the deputy director of the then-new National Security Branch at the Bureau.
At the FBI, Ms. Monaco and I worked on policy and intelligence issues that required
executive attention; Ms. Monaco’s presence at the daily morning threat briefing when
she returned to the Department of Justice allowed us to continue working together
through the time of my departure from government in 2010.

Ms. Monaco has key professional and personal characteristics that make her an
excellent choice for the position of Assistant Attorney General. She has field
experience as a prosecutor and senior-level knowledge of both investigations (FBI) and
prosecutions (DoJ headquarters). Her years sitting at the daily morning intelligence
briefings, watching both foreign intelligence and the evolution of the FBI's domestic
intelligence capability, also have given her unique exposure to different dimensions of
national security work. Her professional experience is broad, and almost unique. I saw
her bring this wealth of experience to bear every day as we wrestled with difficult
challenges, and her ability to look at a new problem and apply what she knew showed
the rare combination of flexibility and great expertise.

Ms. Monaco’s responses to complicated problems we faced consistently showed good
judgment, even in the most trying of circumstances, along with acute intelligence. She
was among the smartest professionals with whom I worked. But she balanced
thoughtfulness and an incisive intelligence with the willingness to ask questions in areas
where she lacked knowledge. In the fast-moving world of domestic intelligence and
complex national security investigations, this mix of intellect, experience, and judgment
is guaranteed to help her succeed, particularly when these talents are combined with
the humility she has to ask good questions and seek counsel.

Ms. Monaco has other personal traits that ensure she would succeed. In particular, her
personable style will help maintain morale in a workforce that faces stress every day,
nearly a decade after the events of 9/1 1 . DoJ has highly capable lawyers and support
staff; her style will help the Department retain this cadre.

Given Ms. Monaco’s background across different aspects of national security problems,
and her leadership style, I feel privileged to add my name to the long list of former
government officials who know her and believe she would be a superb Assistant
Attorney General. And a superb leader.

Sincerely,

Philip Mudd

378

Debevoise 5. Plimpton llp .venue

New York, NY 10022
Tel 212 909 6000
www.debevoise.com

Michael B. Mnkasey

Partner

Tel 212 909 6062
Fax 212 909 7062

mbmukasey^debevoisc.com

April 5, 2011

The Honorable Patrick J. Leahy, Chairman

The Honorable Charles W. Grassley. Ranking Member

United States Senate

Committee on the Judiciary

224 Dirksen Senate Office Building

Washington, DC 205 1 0

Dear Chairman Leahy and Senator Grassley:

I write to support the nomination of Lisa Monaco to serve as the Assistant
Attorney General of the National Security Division of the United States Department of
Justice.

I had the privilege of working directly with Ms. Monaco during my tenure as
Attorney General. She was then the Chief of Staff to the Director of the Federal Bureau
of Investigation. Based on my meetings and conversations with Ms. Monaco, 1 believe
that she has both sound judgment and a keen understanding of national security law.
Which is to say, she understands both the stakes and the rules. I found her bright, hard-
working, and highly competent.

In sum, Ms. Monaco is well qualified to serve in what is a critical position for
both the Department of Justice and our Country. I am pleased to commend her to you.

234074Stv1

New York • Washington. D.C.

London • Paris • Frankfurt * Moscow • Hong Kong • Shanghai

379

STATE OF COLORADO
FIRST JUDICIAL DISTRICT

CHRISTOPHER J. MUNCH, JUDGE

100 Jefferson County Parkway March 17,

Golden, Colorado 80401-6002
Phone <303)271-6170

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Chuck Grassley
Ranking Member
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Chairman Leahy and Senator Grassley,

I am writing to urge the prompt consideration of Chief Judge Brooke Jackson for the
current federal District Court vacancy for the District of Colorado. The unfilled positions
on the federal District Court have created a truly critical problem for the. fair, prompt
administration of justice here. To say that Judge Jackson is uniquely qualified is. If
anything, an understatement.

I doubt that I need comment on the backload our federal District Court is suffering. I am
sure your staff has been fully briefed on this matter.

I would like to say a few things about Judge Jackson. I met him before he became a state
District Judge. He was a partner in one of Denver’s biggest firms and his reputation as a
business law litigator was truly stellar. When his turn came, he was called into my court
for jury duty. We asked if service would be a hardship, and he told us that he felt
honored to be called upon to do his duty as a citizen. It is rare that either litigating
attorney wants a lawyer on the jury, but both sides wanted Brooke. He led the jury by his
example of fairness and diligence but declined to be its foreperson. He asked them to
select a foreperson with a non-legal background. Years later, my wife was called to jury
duty and selected for service in Judge Jackson’s court He treated the jury attentively and
with respect, commanded the courtroom and brought dignity to the experience.

I was a prosecutor in Denver for twelve years and have been a judge for twenty five. I
have never met a judge who works as hard— at least 65 hours per week— or complains as
little as Brooke. He almost never declines when asked to sit on the community boards and
commissions necessary for the fair administration of justice. He is the unquestioned civil

380

law scholar of our bench and has been our point man in improving the administration of
domestic, criminal and juvenile justice. He has established a drug court, an office to
assist pro se domestic litigants, and many juvenile programs. His cooperation with our
Sheriff and County Commissioners to minimize the most severe impacts of our local
financial crisis has been a model of economic efficiency. He has fostered a culture of
efficiency, cooperation and public service among all of the Magistrate, County and
District Court judges. He has instituted an annual Employee Appreciation lunch and
many other programs to let the people who work here know that they are valued. In an
era of effective salary reductions and furloughs, such efforts are important.

Every six years we are thoroughly evaluated by lawyers, litigants, law enforcement and
jurors. Their evaluations are anonymous and the evaluators pull no punches. Many
judges resign or retire rather than have their results published. Brooke’s evaluations have
always been stellar. In the criminal area his evaluations show him to be considered
slightly “tougher” than average, but completely fair. His civil and domestic evaluations
have been similarly excellent as have his evaluations for diligence, temperament,
efficiency and knowledge of the law.

Finally, while I realize that our local situation cannot be central to your consideration, I
ask you to consider it We continue to investigate the kinds of efficiencies that Brooke
inspires - things like a business court and criminal bond reform (for more effective pre-
trial supervision of those charged with felonies). Progress on such things and on a
myriad of administrative matters is difficult until we know who our Chief Judge will be
six months from now. Brooke is understandably reluctant to commit the District to
courses when he doesn’t know whether he or a successor will pilot them.

I must honestly acknowledge that we have mixed emotions about losing our Chief Judge.
But the federal court needs him and they need him now. The quicker his nomination can
be considered, the quicker he can start helping them solve their significant problems.

Please feel free to contact me if you have any questions or if there is anything I can do to
assist you in this matter.

381

(Cnnrt of Appeals

r-

c_ J >

STATE OF COLORADO

•H

DENVER

.tc

80203

HENRY E. NIETO j-4

JUDGE Retired

OsC

iX-

<x

March 29, 20011

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

101 West Colfax
X3EXXXX

Re: Nomination of the Hon. Brooke Jackson

Dear Senator Leahy;

I am writing in support of the nomination of Judge Brooke Jackson as
a judge on the United States District Court for the District of Colorado. I
came to know Brooke when he was appointed as a District Judge for the
First Judicial District in Colorado where I was serving as the Chief Judge.

Brooke adjusted to this new role very quickly. He assumed a full case
load from the very beginning, hearing civil, criminal and domestic relations
cases. He came to the court with an impeccable reputation in the
community and very high standing in the legal community. He quickly
proved that his reputation was fully justified. He ran his courtroom
efficiently, applied the law without bias or favoritism, and used his
discretion with fairness and reason.

Brooke presided over difficult cases, showing that he could be tough
when it was necessary while still being fair to all parties. He was supportive
of law enforcement, but not in ways that comprised his fairness or that
caused a perception of unfairness. His demeanor in court was always calm
and even tempered. As Chief Judge, I never received a complaint about the
way he handled or decided his cases.

I am pleased to support Brooke Jackson’s nomination for this
important position. If he is appointed, he will bring honor to the Court by
his integrity, his legal skills, and his work ethic.

Sincerely Yours,

Henry E. NWto,
Judge (Retired)

382

WheelerTriqg ODonnp!] up

Michael L. O'Donnell

303.244.1850

odoimcll@wtotrial.com

March 24, 201 1

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Chuck Grassley
Ranking Member
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington DC 20510

Re: Nomination of Brooke Jackson

Dear Chairman Leahy and Senator Grassley:

I write in support of the nomination of Colorado state court Judge Brooke Jackson for
the open seat on the USDC for the District of Colorado bench. I am former Chair of the
American College of Trial Lawyers of Colorado and the Chairman of Wheeler Trigg O'Donnell,
a civil trial firm based in Colorado. I have known Judge Jackson for 25 years aS a fellow lawyer,
friend and jurist. He is extremely bright, hard working and thoughtful. In my opinion, he is the
finest state court judge currently sitting in Colorado. He is fair, tough, supportive of law
enforcement, and applies the law without bias. I believe be has the desire and skills to be a first
rate federal judge. Thank you very much for your consideration of his nomination.

Michael L. O’Donnell

MOD:jp

1801 California Street I Suite 3600 I Denver, Colorado 80Z02-261 7 1 P 303.244.1800 I F 303,244.1879 I wtotrial.com

383

STATE OF COLORADO
FIRST JUDICIAL DISTRICT

LILY W. OEFFLF.R
District Court Judge
100 Jefferson County Parkway
Golden, Colorado 80401-6002
Phone (303)271-6110

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Chuck Grassley
Ranking Member
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Chairman Leahy and 5enator Grassley,

It is my privilege to write a letter of recommendation on behalf of the Honorable R. Brooke Jackson,
Chief Judge of Jefferson County to become a Federal District Court Judge. I have known Brooke Jackson
in both a personal and professional capacity for 10 years. As Chief Judge, he is not only responsible for
managing the entire judicial team made up of 13 district court judges, 8 county court judges, 8
magistrates and a staff of 300; but, he also juggles a full caseload of 200 felonies, 200 civil cases and 50
domestic cases. He somehow manages this busy docket and his administrative duties with ease.

Judge Jackson's reputation goes beyond the inner workings of the courthouse. His reputation in the
legal community as a whole is impeccable. He consistently applies the law fairly without bias. His
judicial demeanor is calm and consistent. He exercises discretion wisely and takes his role as a chief
judge very seriously. He is fair-minded and extremely well thought of by the entire law enforcement
community.

Judge R. Brooke Jackson would be an asset to the Federal Bench. Except for the fact that we could never
truly replace him here, I have no reservations in recommending him as Federal District Judge.

Thank you for your consideration in this matter.

Very truly yours.

. UlyWyOeffler
Distri« Court Judge

384

£

March 30,2011

The Honorable Patrick Leahy, Chairman
Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Chairman Leahy;

As the Police Chief for the Lakewood Police Department and a thirty year law enforcement
veteran, I have had the unique opportunity to work closely with Brooke Jackson. He has my
strongest recommendation and is deserving of an appointment to the United States District
Court for the District of Colorado.

My association with Judge Jackson goes back many years and we currently serve together on
the Jefferson County Strategic Planning Committee, of which he is the chair. This committee
is comprised of leaders from a variety of criminal justice disciplines from throughout the area
and serves a vital function. Under Judge Jackson’s leadership, we have implemented many
innovative, comprehensive, and effective criminal justice programs which include Life Skills
Training, strategies for reducing jail overcrowding, an enhanced bonding process, and a home
nursing program. Judge Jackson's vision, wisdom, and leadership have been integral in
keeping the committee focused, leading to the many successful outcomes we have achieved. •

Judge Jackson has long been active in the law enforcement and legal communities. He's a
selfless individual who devotes countless hours to the many causes he is passionate about.
My staff has frequent occasion to interact with him as well, and we all agree that Judge
Jackson epitomizes the qualities one expects in a United States District Court Judge. He is
fair, decisive, able to bring clarity to highly complex issues, and applies the law in an unbiased
manner. I'd be remiss if I didn't also mention Judge Jackson's even temperament, engaging
personality and an excellent sense of humor.

I truly appreciate the opportunity to comment on Judge R. Brooke Jackson's suitability for
appointment to the United States District Court. He will do an outstanding job for the people of
Colorado.

Sincerely,

Kevin Paletta
Chief of Police

City of Lakewood

Kevin Pafetta, Chief of Police
Lakewood Police Department

445 South Allison Parkway
Lakewood, Colorado 80226-3133
3031987-7100 Voice
3031987-7111 TDD
3031987-7296 Fax

T o protect and serve with integrity, intelligence, and initiative

Alternative formats cf this document are available upon request

Office of the District Attorney
First Judicial District
Jefferson and Gilpin Counties

385

Scott W. Storey
District Attorney

March 28, 2011

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, D.C. 20510

Re: Hon. R. Brooke Jackson, Judicial Nominee

Dear Senator,

By way of introduction, I am a Senior Chief Deputy District Attorney in
the First Judicial District of Colorado. I have been a prosecutor for 32
years. During these years I had the opportunity to work with many
judges and want to take a moment to inform you of the qualifications
most admired by the prosecution community.

Of course, basic fairness is a judicial absolute. Judge Jackson has
always exemplified impartiality and fairness. He has been consistent
in his application of the law without bias.

Judge Jackson came to the First Judicial District from a civil law
practice but he quickly became conversant with criminal law and
exemplified leadership in working with the criminal justice community.
He is well respected by law enforcement and as Chief Judge has
consistently provided leadership for the Criminal Justice Strategic
Planning Committee which is made up of members from the criminal
justice community including the Sheriff and police chiefs.

Early in this nomination process, as the President of the First Judicial
District Bar Association I had the opportunity to write a letter of
support for Judge Jackson on behalf of that organization and want to

386

reiterate the sentiments expressed in that letter about his stature in
the legal community as well as the leadership he provides.

Judge Jackson possesses the legal knowledge, common sense and
temperament required to be a superior judicial officer.

In conclusion, Judge Jackson exemplifies the judicial qualities
necessary for the federal bench and certainly has my unqualified
support. If I can provide further information, please contact me at
303 - 886 - 8681 .

Mark C. Pautler

Senior Chief Deputy District Attorney

387

ED PERLMUTTER

7th District, Colorado

T221 Ldngwohth House Oroct Building
Wastumcton, DC 20515
Phone: (202) 22S-2645
Fax: (202) 225-5278

1 2600 West Colfax Avenue
Sucre B-400
Lakewood, CO 8021 S
Phone: (303> 274-7944
Fax: (303) 274-6455

COMMITTEES:

FIN ANCIAL SERVICES
Capital Markets, Insurance and
Government Sponsored Enterprises {GSEs)

Financial fNsrmjnoNE and
Consumer Credit

(Enngrcss of 33nftei5 States RULES
JitruBE at SeprEBEntatiuEB

www.peflmnttBr.housC-flOv

March 30, 2011

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
Washington, DC 20510

Dear Chairman Leahy and Ranking Member Grassley:

On January 5, 2011, President Obama re-nominated Judge Richard Brooke Jackson to be United States
District Judge for the District of Colorado. As a friend and colleague of Judge Jackson, I believe he has
the judicial knowledge and temperament necessary for the federal bench, and I fully support his timely
confirmation.

I am a lifelong resident of Jefferson County, Colorado, the same jurisdiction over which Judge Jackson
has served as a state district judge for 13 years. I knew Judge Jackson before he was appointed to the
bench. He had a sterling reputation among members of the Colorado Bar Association. I have since
practiced law before Judge Jackson, and I have come to know him quite well as both a friend in the
community and colleague. I have also served on a variety of panels with him. He is a man of integrity
and good standing who presides over his courtroom in a fair and balanced manner. Judge Jackson
embodies the characteristics Coloradans expect and deserve in their federal judges.

Since 1998, Judge Jackson has presided over a wide variety of cases important to the people of the State
of Colorado, including a well-balanced docket of criminal and civil proceedings. Notably, he presided
over multiple cases involving the Columbine High School shootings of 1999 and handled them with the
utmost professionalism, sensitivity and fairness, in reviewing his career on the bench, the American Bar
Association rates him "Unanimously Well Qualified," and I could not agree more.

I urge the Committee on the Judiciary to promptly hold a confirmation hearing for Judge Jackson and
send his nomination to the full Senate for confirmation. He is a dedicated public servant, and his
qualifications are exemplary. The people of Colorado would be well served to have him on their federal
district court.

The Honorable Charles Grassley
Ranking Member
Committee on the Judiciary
Washington, DC 20510

PRINTED ON RECYCLED PAPER

388

HOLLAND&HART.

THE

LAW OUT WES

Paul D. Phillips
Phone 303-295-8131
Fu 303-295-8261
pphKps@hollandhait.com

March 22, 201 1

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
224 Dixksen Senate Office Building
Washington, DC 20510

Re: Jndge Brooke Jackson, District of Colorado

Dear Chairman Leahy:

I am writing to voice my unqualified support for moving Judge Brooke Jackson’s name
forward at the hearing on April 1 3, 201 1 before the Senate Judiciary Committee. I have known
Judge Jackson for more than 30 years. He has a well-deserved reputation throughout Colorado
and the Rocky Mountain West as a superb man of the law who brings outstanding qualities of
character, integrity, an even judicial temperament and tough but fair values to the task of
judging.

I know Judge Jackson very well, because he and 1 practiced law together for more than
20 years at Holland & Hart, at which time he took a severe pay cut to pursue his commitment to
public service by becoming a Colorado State District Court Judge. I knew Judge Jackson to be
supportive of the law enforcement community and the rule of law; he has the highest possible
standing in the Colorado legal community; and he is a person who would apply the law fairly
and intelligently, without bias dr preference to anyone. Simply put, he would be an ornament to
the Federal Bench. One of the most sound and sensible actions that Congress could take this
session would be to confirm Judge Jackson as a United States District Court Judge.

I sincerely hope that Judge Jackson’s nomination will be moved forward for bearing on
April 13 th . Thank you for your service, and please do not hesitate to call me with any questions
or comments.

Paul D. Phillips
for Holland & Hart u.r

PDP:dc

50M 724J.DOCX

Holland & Hart llp

Phone I3Q3J 295-8000 Fax [303] 295-6261 W3trw.hoUam5hart.COfn

S5S 17tt» Street Suite 3200 Denver, CO 80202 Mailing Address P.O.Box 8749 Denver, CO 80201-8749

Aspen Billings Boise Boufder Cheyenne Colorado Springs Denver Denver Tech Center Jackson Hoie Salt Lake City Santa Fe WashingtoaD.C a

389

SCOTT D. ALBERTSON
DENNIS B. POLK
ERIC E. TORGERSEN

Holley, Albertson & polk, P.C.

Attorneys At Law
Denver West Office Park
Suite 100, Building 19
1667 CoueBivd.

Golden, Colorado 80401
Phone (303) 233-7838
Fax (303) 233-2860

GEORGE ALAN HOLLEY
(1925 - 2002)

HEATHER S. HODGSON
MELISSA R. METTUS

March 30, 2011

Honorable Patrick Leahy
Chairman

Committee on the Judiciary
Washington, D.C. 20510

Honorable Charles Grassley
Ranking Member
Committee on the Judiciary
Washington, D.C. 20510

Re: Nomination of R, Brooke Jackson-United States District Court Colorado

Dear Chairman Leahy and Ranking Member Grassley:

1 am writing this letter to seek the confirmation of R. Brooke Jackson as a United States
District Court Judge, State of Colorado. I understand the sincere obligation that members of
your committee have with respect to the process of confirmation of a person to become a United
States District Court Judge. Therefore, I [alee the obligation of writing to you with regard to this
matter very seriously.

The undersigned and Unis law firm have been active in the Republican Party in Jefferson
County, Colorado, for many years. I served on the Judicial Nominating Commission that sent
Judge Jackson’s name to the Governor for appointment as a State Distinct Court Judge. I served
on that Commission for six years. During the time in which Judge Jackson made application to
become a State Court District Judge, I served as the Chairman of the First Judicial District
Nominating Commission. I have also served on enumerable other committees and commissions
that deal with the conduct of Judges and their role in Colorado. I have practiced law for nearly
33 years and have appeared in hundreds of matters before District Court Judges. I have tried
numerous cases before Judge Jackson.

I feel that Judge Jackson is unqualifiedly the best State Court Judge that I have ever
appeared before. He has an incredible knowledge of the law, but more importantly, brings a real
world sensibility to the proceedings before him. He is thorough, analytical and fair in all of his
rulings and determinations. I sincerely believe that the people of the State of Colorado and the
United States could not be better served than by the confirmation of Judge Jackson as a United
States District Court Judge. He is well respected by all members of the community beyond the

390

Chairman Leahy and Ranking Member Grassley
March 30, 2011
Page 2

legal community. I have personally seen Judge Jackson make the extra effort to become
involved in non-partisan matters that vitally affect our community. Pie generously gives of his
time to participate in appropriate civic activities. Most recently, I visited with Judge Jackson in
his role as a member of what is known as the Jefferson Foundation, which is a non-profit
organization that is dedicated for purposes of enhancing and dealing with the educalion of
students within the Jefferson County, Colorado, School District. This is a thankless task and
requires enormous effort on behalf of the participants in that organization.

I respectfully urge your Committee to proceed to confirm the nomination of Judge
Jackson to the position of the United States District Court Judge. I want you to know that this
correspondence is unsolicited by the applicant or anyone on his behalf. I feel compelled to write
to you because 1 am a person who actually appears before the United States District Court and
sincerely believe that Judge Jackson would be a fine addition to that bench and would improve
all aspects of the administration of justice.

I am more than happy to speak with anyone or assist in any manner I can to encourage
the confirmation of Judge Jackson. Thank you for the opportunity to have presented my point of
view.

Sincerely,

DBP/db

391

5358 Wildcat Court
cvj Morrison, CO 80465

The Honorable Patrick Leahy ^

Chairman

Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Re: R. Brooke Jackson
Nomination for Federal District Judge
United States District Court for the
District of Colorado

Dear Senator Leahy:

I am writing this letter in support of R. Brooke Jackson’s nomination for a vacancy on the
Colorado Federal District Court Bench. I won't waste your time in discussing the critical need to fill
vacancies on the Federal Bench, because I am sure that given your position you are well aware of that
fact.

I will, however, tell you a little about Brooke Jackson. I have known Brooke for many years, both
as a colleague on the Colorado First Judicial District Court Bench and as a friend. I have also served with
him on committees and participated with him or seen him in public activities or legal seminars. I,
therefore, feel that I have a more than adequate basis to comment on his abilities to serve as a Federal
District Judge.

Brooke is one of the hardest working judges I know. He always comes into the court early in the
morning and generally leaves the court after the normal person has eaten dinner. (His wife, Liz, is
extremely tolerant of this.) Needless to say this means he is always very well prepared and
knowledgeable about whatever kind of case comes before him. While he has an excellent
temperament and is kind to all, he is also dearly in control of his courtroom.

In Colorado we have a system for evaluating judioal performance. This system surveys litigants,
lawyers and other persons such as law enforcement personnel who appear in a particular judge's
courtroom. Brooke has always scored extremely high in his evaluations by all of these groups. I have
attached a copy of his most recent public evaluation to this letter. The evaluation reflects that 96% of
non lawyers recommended that Brooke be retained as a Colorado District Court judge. The non lawyers
surveyed induded law enforcement personnel, probation officers, social service workers as well as
litigants. As you can see Judge Jackson has the highest respect of all members of the community.

I am active in the Colorado Bar Association and know of my own personal knowledge from
talking to attorneys throughout the state that Brooke is a very well respected jurist within the legal
community and considered extremely fair by all who appear before him. He is what people wish all
judges could be like - fair, unbiased, knowledgeable and considerate.

392

1 hope this helps you to know more about Brooke. If you have any questions, please call me at
303 697 - 5991 .

Thank you for taking the time to consider this letter.

)

Rut hah ne Poirdori
Senior Judge

Enc

393

Bill Ritter Jr.

1736 South Clarkson St.
Denver, Colorado 80210

S70 432Z6S0{wm1<)

April 1, 2011

The Honorable Patrick Leahy,
Chairman

Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Chuck Grassley
Ranking Member
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

RE: Hon. R. Brooke Jackson, Nominee forthe U.S. District Court of Colorado

Dear Chairman Leahy and Senator Grassley,

Forthe past four years I was the Governor of Colorado. From 1993 to 2005, 1 was the elected
District Attorney of Denver, Colorado. Prior to that, I practiced law as a state and federal
prosecutor for several years. In my time as a trial prosecutor, as the District Attorney of
Denver, and as the Governor, I have come to know Judge Brooke Jackson. I have become
well-acquainted with his work on the bench in the First Judicial District and his reputation in
the Colorado legal community. It is with this background that I write this letter of support
and recommendation to you.

Judge Jackson is exactly the type of Judge we need on the Federal Bench in Colorado. His
record as a jurist stands forthe proposition that a judge can be thoughtful, committed to
precedent, fair to the litigants in his courtroom, and possess the right mixture of toughness
and compassion. I have never actually appeared in front of Judge Jackson, but those who

394

have regard him as an extraordinarily competent jurist, even when he has ruled against them.
He has the right intellect, to be certain, but he also has a grasp for what rt means to be
committed to eking out justice, case by case. He does not substitute the law with his own
opinions, but where he has discretion, he makes great efforts to bend toward a just outcome
for the individuals involved and for the community at large.

No system of justice is self-executing. It works, or does not work, because the people within
the system are committed to the ideal of doing justice all day, every day. Judge Brooke
Jackson is that person. He is that Judge. He would be an exceptional choice for the U.S.
District Court Bench in Colorado and it is my hope you will confirm his nomination.

If I may be of any further assistance, please do not hesitate to contact me.

Sincerely,

Bill Ritter, Jr. /)

395

Office of the District Attorney
First Judicial District
Jefferson and Gilpin Counties

March 28, 2011

Scott W. Storey
District Attorney

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, D.C. 20510

and

The Honorable Chuck Grassley
Ranking Member
Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, D.C. 20510

Honorable Members of the United States Judiciary Committee:

I am writing this letter on behalf of Judge Brooke Jackson who has been
nominated to the United States District Court bench for the District of
Colorado. I am the elected District Attorney in the First Judicial District,
Jefferson and Gilpin Counties, Colorado. I have known Judge Jackson for
over 15 years. I am familiar with his abilities as a trial court judge in the
First Judicial District, and as an administrator in our judicial system.

As a District Court Judge, Judge Brooke Jackson is respected and known
as a fair and decisive judge. He is conscientious and hard working. He
has consistently received high marks in every category by attorneys and
non attorneys participating in the Judicial Performance surveys. Deputy
District Attorneys in my office have commented to me that Judge Jackson
is always well-prepared. His rulings are organized and include detailed
findings. His sentences can be tough when required, but always judicious.
His judicial demeanor is what one would expect from a judge in the
courtroom, and he applies the law without bias.

500 Jefferson County Parkway, Golden, Colorado 80401-6020 (303)271-6800 FAX (303) 271-6888

396

As the Chief Judge in our judicial district, Judge Brooke Jackson has been
a leader. He has been creative in these times of dwindling budgets and
stretched resources. He is the Chair of the Criminal Justice Strategic
Planning Committee. In that role Judge Jackson has pushed innovative
solutions and collaboration for the improvement of our criminal justice
system.

Judge Brooke Jackson is a leader inside and outside the courtroom. He
has contributed to the legal profession as a litigator, a diligent and just
trial court judge, and an advocate for improving our judicial system. I
strongly support the confirmation of Judge Brooke Jackson as the next
U.S. District Court Judge for the District of Colorado.

Scott W. Storey
District Attorney
First Judicial District

397

STATE OF COLORADO

First Judicial District
Ryan J. Stuart, Magistrate
100 Jefferson County Parfcway
Golden, CO 80401
303-271-6274

co

04

ro-

se

The Honorable Patrick Leahy, Chairman March 25, 2011

Committee on the Judiciary

224 Dirksen Senate Office Building

Washington, DC 20510

The Honorable Chuck Grassley, Ranking Member
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Chairman Leahy and Senator Grassley:

I am writing this letter in support of Chief Judge Brooke Jackson's nomination to the US District
Court and to urge the Senate to confirm Judge Jackson expeditiously.

I have had the pleasure to appear before Judge Jackson when l was a Deputy District Attorney in
the First Judicial District, and I now serve as a District Court Magistrate in the judicial district in his
charge. As a Deputy District Attorney I always enjoyed appearing in his courtroom as I found Judge
Jackson to be fair and respectful to litigants and counsel. When the cases warranted it. Judge Jackson
imposed firm, yet fair, sentences. One case in particular stands out in my mind. Two seventeen year old
juveniles, charged as adults, were before Judge Jackson for sentencing on First Degree Assault and
Attempted Escape after brutally assaulting a corrections officer at a youth detention facility. Before
imposing sentence. Judge Jackson passionately spoke to the need to protect corrections officers and law
enforcement officials and to set a clear expectation that assaults on those who serve would not be
tolerated. He then sentenced the juveniles to 24 years in prison, the sentence I had recommended.

Working for Judge Jackson as a Magistrate, I have had the opportunity to get to know him even
better. He is by far the hardest working person in the courthouse. Judge Jackson is usually the first
person to arrive in the morning and the last to leave. He has an impeccable reputation in the legal
community and among those who work with him in the courthouse.

398

I can think of no attorney or judge in the State of Colorado more qualified, by experience,
temperament, or fairness, to serve on the federal bench than Chief Judge Brooke Jackson. I recommend
his confirmation enthusiastically and without reservation.

Sincerely,

m c

V-

Ryan

n iuart

:;X

399

ATTORNEY GENERAL OF COLORADO

John W. Suthers

March 24, 2011

The Honorable Patrick J. Leahy
Chairman, Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 205 1 0

Re: Nomination of Richard Brooke Jackson for the U. S. District Court Bench
in Colorado

Dear Senator Leahy:

I am writing to urge the Judiciary Committee to support President Obama’s
nomination of Brooke Jackson to the United States District Court for the District of
Colorado. He is an outstanding Colorado lawyer and jurist who would make an
excellent addition to the federal court bench.

In my experience, and that of members of my office, Brooke Jackson is highly
intelligent, has a tremendous grasp of the intricacies of the law, has an outstanding
judicial demeanor, and is eminently fair. After graduating from Dartmouth and Harvard
Law School, Brooke spent 26 years as an attorney with the prestigious firm of Holland
& Hart. He was appointed to the state district court bench in 1998 and appointed chief
judge of the 1 st judicial district in 2003. He is respected by his fellow jurists, litigants,
and the legal community at large. I consider him highly qualified for the federal bench
and would urge you to move his nomination forward expeditiously.

Sincerely,

State Services Building • 1525 Sherman Street-T 111 Floor • Denver, Colorado 80203
Phone (303) 866-3557 • FAX (303) 8664745

400

WHITE & CASE

White & Case ur Tei + 1 202 623 3600

701 Thirteenth Street, NW Fax r 1 202 639 S355

Washington, DC 20005 www.yyhrtecase.com

Direct Dial + 1 202 626 3628 gterwilliger@whitecase.com

April 12, 201 1
VIA E-MAIL

The Honorable Patrick J. Leahy
Chairman

Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Charles E. Grassley
Ranking Member
Senate Committee on the Judiciary
152 Dirksen Senate Office Building
Washington, DC 20510

Re: Assistant Attorney General for the National Security Division Nominee Lisa O. Monaco

Dear Mr. Chairman and Ranking Member Grassley:

I write to commend the Committee’s support for the confirmation of Lisa Monaco to be
Assistant Attorney General for the National Security Division of the Department of Justice.

It is quite evident that Ms. Monaco has the background, experience and temperament to be
judged as extremely well-qualified for a leadership position in the Department of Justice.
Moreover, I have learned that peers with whom she has worked in prior positions of significant
responsibility regard her professional qualities as among the highest. It seems certain that the
combination of the expertise that she possesses and a high regard for her by professional
associates positions her well to exercise the leadership required of an Assistant Attorney General.

Moreover, I have had an opportunity to talk with Ms. Monaco about several of the issues and
challenges our government generally and the Justice Department specifically face today in
combating threats to our nation’s security and to the safety of our people. The result of that
exchange leaves me convinced that Ms. Monaco appreciates fully the gravity of the
responsibilities of the Division and is well oriented to address successfully the challenges
presented.

ABU DHABI ALMATY ANKARA BEIJING BERLIN BRATISLAVA BRUSSELS BUCHAREST BUDAPEST DOHA DUSSEID0RF FRANKFURT
GENEVA HAMBURG HELSINKI HONG KONG ISTANBUL JOHANNESBURG LONDON LOS ANGELES MEXICO CITY MIAMI MOSCOW MUNICH NEW YORK
PARIS PRAGUE RIYADH SAG PAULO SHANGHAI SILICON VALLEY SINGAPORE STOCKHOLM TOKYO WARSAW WASHINGTON, DC

401

The Honorable Patrick J. Leahy
April 12, 20 tl

WHITE S CASE

For these reasons, 1 respectfully urge the Committee’s favorable consideration of her nomination.

Sincerely yours,

George J. Terwiiliger III

cc: All Members of the Senate Committee on the Judiciary

2

402

MAUREEN !. O'BRIEN, ESQ.
DAVE THOMAS. ESQ.

Jackie Barker, Legal Assistant

O BRIEN & THOMAS, LLC

ATTORNEYS AT LAW

! ’600 \Y. Colfax Avenue. Suite C-400
LakcmtoJ. Colorado SO ’ U
Photic: OC if 2 5S^64S
Fax: { >0?) 2 '2A16I
wtvxv.t >l'rien^homav!aw.c >m

March 31, 2011

The Honorable Patrick Leahy
Chairman, Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington D.C. 2051Q

RE: Nomination of Brooke Jackson to the Federal Court Bench (Colorado)

Dear Senator Leahy:

I am writing to support the nomination of Brooke Jackson to the Federal District Court
bench in Colorado. Currently Judge Jackson is serving as a District Court Judge in the
1 st Judicial District of Colorado. I served as the elected District Attorney from January,
1993 until January, 2005. During that time I observed Judge Jackson on numerous
occasions and also served on committees with him. For the past 3 years I have been a
practicing criminal defense lawyer and have appeared before Judge Jackson on
numerous occasions. I also serve on the First Judicial District Judicial Performance
Committee that evaluates our judges and published an evaluation for purposes of
retention. My comments are based upon these many contacts and observations under
a variety of circumstances.

Regardless of whether I was appearing as a prosecutor or a defense attorney, I have
always found Judge Jackson to be fair and impartial. He treats all parties, be they
attorneys, witnesses or defendants with dignity and respect at all times. I have never
seen him angry or act in anyway except with total professionalism. I have found Judge
Jackson to be very decisive in his decision-making and a tough Judge with respect to
sentencing when the facts and circumstances so dictate. As I mentioned, I have
served on committees with Judge Jackson that serve the legal community and have
found his standing in this peer group to be beyond reproach. He is extremely well
respected. When I was serving as the Chief Law enforcement official in the district I
found that the law enforcement community admired and respected Judge Jackson.

I guess the best compliment I can provide is to tell you that if I were a defendant or a
police officer I would be very happy to have my case before Judge Jackson. He is
tough but fair. He is impartial and even-handed. He treats everyone with the
maximum respect and dignity. He is totally unbiased regardless of who the parties are
or who they represent. He has been an exceptional Presiding Judge in this jurisdiction. I
support and endorse him with reservation or hesitation.

Sincerely— z-'' h

David J. Thomas

403

HOLLAND &HARX

THE LAW OUT WEST*

Christopher H. Toll P,C.

Phone 303-290-1637
Fax 303-290-1606
cLLfs lyjfandhart.com

March 28, 2011

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Chuck Grassley
Ranking Member
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Re: Hon. R. Brooke Jackson Judicial Appointment
Dear Chairman Leahy and Senator Grassley,

I write in support of confirmation of the Hon. R. Brooke Jackson’s appointment to the United
Slates District Court for the District of Colorado. I understand that Judge Jackson’s confirmation
hearing may proceed on April 13. I urge you to proceed with his hearing at the earliest possible
date, and to vote in favor of his confirmation.

I have known Judge Jackson for 27 years, since I was a summer clerk at my law firm, Holland &
Hart. In those days, Judge Jackson was a young partner at our firm, making a name for himself
as a trial lawyer in the Denver area courts. His most noteworthy quality as a litigator back then
was his unquenchable thirst to be in trial. He would try any case, anywhere, anytime, for the
pure joy of being in court. And he encouraged us young lawyers to be the same way. On more
than one occasion, he promised a client a low flat fee — that was destined to lose money for the
firm — -just to give me the opportunity to go try a small case in Denver County Court. He wanted
all of us to share his love of the courtroom.

Judge Jackson’s second-most noteworthy quality as a litigator was his excellence. Much of that
flowed from his enthusiasm for the practice of law, but it was also a function of his intellect.

The man is flat out brilliant He was known for his intelligence then, and he remains known for
it now as Chief Judge of the Jefferson County District Court. There are few in Colorado who
command the same respect as Judge Jackson when it comes to legal acumen.

Holland 8t Hart u»

Phone [303] 290-1600 Fax f303] 290-1606 www.hoHandhart.com
6380 South Fiddlers Green Gfde Suite 500 Qeenwood Village, CO 801 11

Aspen Boulder Carson City Co torado Springs Denver Denver Tech Center Billings Boise Cheyenne Jackson Hole Las Vegas Reno SaltlakeCIty 5antaFe Washington, D.C. *

404

HOLLAND &HART-

THE LAW OUT WEST

March 24, 201 1
Page 2

I know that from the day he took the bench in Jefferson County it was his highest priority to treat
everyone in his courtroom with complete respect and even-handedness. And that is indeed the
reputation he has earned over the years. I have heard nothing but the highest compliments of his
fairness and judicial demeanor. He is frequently recognized as being one of the best — if not the
best — state court trial judge we have in Colorado.

But now he is ready for a new challenge. When I had occasion to chat with him recently I asked
him whether he was at all intimidated by the prospect of learning entirely new bodies of federal
law that he would not have encountered on the state court bench. He laughed and said to the
contrary, he could not be more excited about the opportunity to learn something new. I saw the
same twinkle in his eye that I saw 20 years ago when he was preparing for trial. All judges
should have such enthusiasm.

Judge Jackson will be a stellar addition to our federal bench, I hope you will do everything
within your power to make that happen as soon as possible.

Thank you for your consideration.

Sincerely,

Christopher H. Toll
of Holland & Hart LLP

50G7236 LDOCX

405

o

O'Melveny & Myers llp

BEIJING
BRUSSELS
CENTURY CITY
HONG KONG
LONDON
LOS ANGELES
NEWPORT BEACH

1625 Eye Street, NW
Washington, D.C. 20006-4001

TELEPHONE (202) 383-5300
FACSIMILE {202) 383-5414
www.omm.com

NEW YORK
SAN FRANCISCO
SHANGHAI
SILICON VALLEY
SINGAPORE
TOKYO

April 11,2011

WRITER’S DIRECT DIAL

VIA E-MAIL AND FIRST CLASS MAIL < iol) ,8vs ' '*

WRITER’S K-MAIL ADDR KS S

The Honorable Patrick J. Leahy, Chairman kwainsteinffioimn.com

The Honorable Chuck Grassley, Ranking Member

Senate Committee on the Judiciary

SD-224 Dirksen Senate Office Building

Washington, D.C. 20510-6275

Dear Chairman Leahy and Ranking Member Grassley:

Please accept this letter in strong support of the President’s nomination of Lisa Monaco
for the position of Assistant Attorney General for National Security.

I served in that position when the National Security Division was first established, and 1
carry a deep affection for the Division’s members and a personal interest in knowing that they
have strong and effective leadership. Based on my decade of work experience and friendship
with Lisa, I am convinced that she is the person who can provide that leadership.

As you know, the AAG for National Security sits astride the intersection of the Justice
Department’s law enforcement and intelligence programs. As such, the job requires a deep
understanding of both programs and an ability to channel their different practices, personnel and
priorities toward the overriding objective of protecting our national security. Over the course of
her exceptional Justice Department career, Lisa has gained the experience and insights necessary
to meet these demanding job requirements.

First, Lisa has an in-depth knowledge of the workings of law enforcement, thanks to her
six years in the trenches as a prosecutor in the District of Columbia U.S. Attorney’s Office
handling everything from violent crime cases to the complex fraud trial against a group of former
Enron executives. This experience gave Lisa a strong ability to analyze and assess the merits of
a criminal case and the sound judgment required to handle the myriad tactical and strategic calls
that must be made in the course of a significant investigation.

Importantly, her prosecutorial experience has also honed her understanding that
aggressive investigative activities can - and must - be carried out hand-in-hand with the
protection of privacy and civil liberties. On many occasions, Lisa and 1 have analyzed the

406

O'Melveny & Myers llp

The Honorabie Patrick J. Leahy, Chairman, April 1 1, 201 1 - Page 2

privacy implications of a certain course of investigative action, and I have always been struck by
the depth of both her legal analysis and her commitment to civil liberties.

Lisa has equally extensive practical experience in the field of intelligence law. As the
FBI Director’s counselor and Chief-of-Staff and in the Office of the Deputy Attorney General,
Lisa has been actively involved in many of the significant national security investigations over
the past five years. That operational experience has given her an important familiarity with
Intelligence Community processes and personnel, and has honed her judgment in the difficult
issues that arise in the course of intelligence operations.

In addition, Lisa brings to the job a seasoned perspective on high-level management in
the Department of Justice. From her early experience as a counselor to Attorney General Reno
to her management of the FBI Director’s office and the Deputy Attorney General’s agenda, Lisa
has shown an aptitude for leadership. She recognizes that effective management requires one to
both master the subject matter of the job and lead by example and inspiration. She also
understands that management requires an intense focus on bridging differences and building
consensus -- a skill that is particularly important in the national security realm which involves so
many actors at every level of state, federal and foreign government, all of whom have their own
perspectives and agendas. Her consistent success at the highest levels of the Justice Department
is evidence that Lisa is fully equipped with these skills and applies them very effectively.

Lisa also recognizes one other important truism — that national security operations are no
place for politics. As we all recognize, it is vital to the credibility and effectiveness of the
National Security Division — and the national security program as a whole — that its leaders
assess their options without regard to politics. Lisa has been doing just that for many years now,
and her non-political reputation will serve her well in the tough decisions she will have to make
as Assistant Attorney General.

1 applaud the President’s nomination of someone of Lisa’s caliber for this important
position. I believe Lisa is ideally suited to serve as Assistant Attorney General, and that the
Department and the Nation will be very well served with her at the helm of the National Security
Division. Please do not hesitate to contact me if I can provide further information that would
assist the Committee in its consideration of this important nomination.

Sincerely,

Kenneth L. Wainstein

O’MEL VENY & MYERS LLP

407

U.S. DEPARTMENT OF JUSTICE

John F. Walsh

United States Attorney
District of Colorado

303-454-0100

303-454-0400

April 1,2011

1225 Seventeenth Street. Suite 700
Seventeenth Street Plaza (FAX)
Denver. Colorado 80202

The Honorable Patrick Leahy
Chairman

Co mmi ttee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, D.C. 20510

Re: Support for R. Brooke Jackson for the U.S. District Court, District of Colorado
Dear Senator Leahy:

I am writing in strong support of the nomination of the Hon. R. Brooke Jackson to the
United States District Court for the District of Colorado. T have known Brooke Jackson for more
than 16 years, and based on my personal and professional experience with him, believe that he
would be a tremendous addition to our U.S. District Court bench.

Judge Jackson and I first met in 1995, when he was a partner at Holland & Hart, LLP,
and I was a new “of counsel” lawyer at that firm. I had just returned to Denver after serving for
eight years as an Assistant U.S. Attorney in Los Angeles, where I had been Chief of the Major
Frauds prosecution section. Brooke was already a legend at Holland & Hart when I arrived,
renowned for his ability to take extraordinarily complex matters and distill them successfully for
trial to a jury. Because of his reputation as a pillar of the firm, I initially approached him with
some caution, but immediately found him to be warm, self-deprecating and personable in every
way. Far from giving the “new kid on the block” a cold shoulder, he welcomed me to the firm.
We have been personal and professional colleagues, directly and indirectly, ever since.

From that personal experience, I know that Judge Jackson has a rare combination of
professional and personal gifts that make him extremely well suited to the U.S. District Court
bench. Let me describe those gifts as I have experienced them over the years.

First and foremost. Judge Jackson is a powerful, non-partisan and unbiased legal thinker
who has the capacity to take tough legal and factual issues and make sense of them. In fact,

The Honorable Patrick Leahy
April 1,2011
Page 2

Judge Jackson is attracted to those tough problems out of intellectual curiosity and drive. He is a
“lawyer’s judge,” and comes to every case with an open mind, a strong practical focus, and with
the recognition that, as Justice Holmes famously commented, the life of the law has not been
logic, but experience.

Moreover, as Judge Jackson’s years on the Colorado bench demonstrate, he has a truly
judicial temperament He approaches the job with humility and with a thorough respect for the
parties before him and their counsel He acknowledges his own fallibility, and is willing to
listen. He acts firmly, rapidly and fairly, and enjoys great respect and even admiration in the law
enforcement community. His capacity for work is enormous. He understands - and shows by
his actions that he understands — that being a judge is an act of public service.

Judge Jackson’s career as a whole underscores that commitment to public service. As a
highly-respected senior partner in the largest law firm in Colorado, he chose to seek a seat on a
state trial court, to the surprise of many at the time. As a judge (and as chief judge of his judicial
district), he has taken on extensive administrative duties in addition to a heavy caseload, all the
while working with only a small staff. I know from countless conversations with him that he
sees his work as a judge as a calling.

Finally, I should call to your attention one additional, highly important measure of Judge
Jackson’s character. Judge Jackson understands that as a judge, he is in a unique position to act
as a teacher and as a mentor, and to reach across traditional barriers in our society. I have seen
him mentor young attorneys extensively — both at Holland & Hart, and while he has been serving
as a judge - and have been struck by his desire to build a broad, diverse cadre of talented lawyers
who share his love of the law and of public service, I have seen him take middle school students
into his chambers to give them a sense of how our judicial system actually works - including one
middle school student who a decade later sought me out to tell me that his experience with Judge
Jackson helped lead him to become a lawyer. He has also reached out over the years to the
growing Latino community in our state, and enjoys a well-earned reputation for fairness in the
community as a whole.

In sum. Judge Jackson would be a tremendous addition to our U.S. District Court here in
Colorado. His nomination has my strong support.

I would be very happy to discuss Judge Jackson with you or with your staff at any time.
Thank you for the work that you do on these matters of great importance to our country.

409

Office of the District Attorney
First Judicial District
Jefferson and Gilpin Counties

March 3 1,2011

The Honorable Patrick Leahy
Chairman, Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, D.C. 20510

Re: Nomination of Judge Brooke Jackson for the Federal District Court

Dear Senator Leahy:

Please allow me to introduce myself. I am currently a senior chief deputy district attorney in Colorado’s First
Judicial District where Brooke Jackson presides as chief district court judge. I have over thirty years experience
in the criminal justice system, including over eighteen years as a prosecutor. In addition, I had the privilege of
serving as the Executive Director of the Colorado District Attorneys’ Council, representing all of Colorado’s
twenty-two elected district attorneys before the Colorado General Assembly and acting as a liaison with the
Office of the Governor and the Attorney General. In 2004, 1 was appointed by Governor Bill Owens to the
district court bench in the First Judicial District where I served with Brooke Jackson. In 2007, 1 was asked by
Governor Bill Ritter to join his cabinet as the Executive Director of the Colorado Department of Public Safety. I
also chaired the Colorado Commission on Criminal and Juvenile Justice for over three and one-half years.
Finally, 1 should mention that I am a lifelong Republican.

It is a distinct honor to write in support of Judge Brooke Jackson’s nomination to the federal district court bench.
I can state without hesitation or equivocation that Brooke Jackson is one of the finest lawyers and judges that 1
have ever known. Brooke’s legal ability is only exceeded by his exceptional character and integrity. His sense
of justice is unparalleled. Often when difficult decisions needed to be made, my fellow judges and I would seek
Brooke’s advice and counsel. He has an extraordinary talent to distill a case to its essence and focus on the most
salient points. Brooke assiduously adheres to the rule of law and controlling precedent. He also has an abiding
respect for the separation of powers and the limited role of the judiciary in our system of justice.

Since the majority of my professional experience has been in the criminal justice arena, I am particularly
interested in Brooke’s approach to criminal matters. He consistently exhibits a respect for the rights of all
defendants, but he never neglects victims’ issues or his responsibility to preserve public safety within the
parameters of his job. The sentences that he imposes are fair, balanced, and proportional to the crimes
committed. His command of the rules of evidence and criminal procedure, his demeanor, and the decorum
established in his courtroom result in deputy district attorneys requesting to be assigned to his division. Brooke
sets a standard for competence and professionalism to which all district court judges should aspire to attain.

Please accept my unqualified and strongest possible endorsement of Judge Brooke Jackson’s nomination to the
federal district court bench.

Thank you for considering my thoughts on this very important matter.

Respectfully yours,

fsSkl

Peter A. Weir

Senior Chief Deputy District Attorney

First Judicial District

Office of the District Attorney

500 Jefferson County Parkway, Golden, Colorado 80401-6020 (303)271-6800 FAX (303) 271-6888

410

rm WheelerTriggO’Donneli HP

1 r>

■r-i

r- ■

o.

March 21, 2011 r 1

■OS'

CO

<x

The Honorable Patrick Leahy ^

Chairman

Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Chuck Grassley
Ranking Member
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Chairman Leahy and Senator Grassley:

Malcolm E. Wheeler

303.244.1870

wheder@wtotriaI.com

I am writing to support the nomination of Judge Brook Jackson for appointment to the bench of
the United States District Court for the District of Colorado. I have known Judge Jackson for
many years, and he has deservedly earned a reputation as one of the finest trial judges in the
State of Colorado. Before his appointment to the Colorado bench, he was one of the premier trial
lawyers in the state. Of considerable importance is that he tried cases both for plaintiffs and for
defendants, a background that has enabled him to be a particularly fair-minded judge in his years
on the bench.

Sincerely yours.

Malcolm E. Wheeler

1801 California Street I Suite3600 I Denver, Colorado 80202-2617 I P 303,244.1800 I F 303.244.1879 I wfotrial.com

411

Holland&Harx ^

THE LAW OUT WEST'

Maureen Reidy Witt
Phone 303-290-1629
Fax 303-290-1606
rnwitt@hollandhart-cofii

March 21, 2011

VIA UPS OVERNIGHT MAIL

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 205 1 0

The Honorable Chuck Grassley
Ranking Member
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Re: Nomination of R. Brooke Jackson for the United States District Court

for the District of Colorado

Dear Chairman Leahy and Senator Grassley,

I write in support of the nomination of R. Brooke Jackson to serve on the United States District
Court for the District of Colorado and to urge that Judge Jackson’s name be moved forward for
the hearing of the Senate Judiciary Committee scheduled for April 1 3, 201 1 .

I have known Brooke Jackson since 1 979 as a colleague and then as my law partner at the law
firm of Holland & Hart in Denver, Colorado. Throughout my career, Brooke has been my
advisor, mentor and friend. Brooke was instrumental in my decision to become a trial lawyer
and taught me how to be an ethical and effective litigator. 1 have had the opportunity to
personally observe numerous trials and proceedings in his courtroom and, last Spring, had an
opportunity to chair a case before him.

Brooke is a man of impeccable character, keen intellect, unquestionable fairness and profound
dedication to our system of justice. Brooke has had the very finest legal education and hands-on
training as a trial attorney and as a judge in a wide-variety of cases from complex civil litigation
to challenging criminal matters. Brooke is extremely able and intelligent. There is no task in our
legal system beyond his capability. Brooke is dedicated and hard-working. He invests himself
in insuring that cases are well-handled and that prompt and equitable resolutions are achieved.
Brooke comes to cases with an open mind, without any bias, prejudice or predisposition. He

Holland & Hart tu>

Ptwn* [303] 29O-160C Fax [303} 29(41606 wwwJioiUndttart.com
6380 South Fiddlers Green Cirde Suite 500 Greenwood Village, CO 8011 1

Aspen Boulder Carson City Colorado Springs Denver Denver Tech Center Billings Boise Cheyenne Jackson Hote Us Vegas Reno Salt Lake City Santa Fe Washington, DC O

412

Holland &Harx

THE LAW OUT WEST

The Honorable Patrick Leahy
The Honorable Chuck Grassley
March 21, 201 1
Page 2

treats everyone with the utmost respect and courtesy. He is thoughtful and even-handed at all
times. He is always in command of his docket and his courtroom. Brooke provides the perfect
balance of toughness and fairness on the bench and is widely recognized in our community as a
model jurist, as well as a truly exemplary individual.

Brooke has devoted himself to becoming an outstanding judge in every respect, just as he did
when he was a trial lawyer. Before Brooke assumed his position on the Jefferson County
District Court bench, for example, he voluntarily spent nights driving with Jefferson County law
enforcement officials on their shifts so he could learn what challenges they confronted in their
jobs on a daily basis. It is that kind of commitment to learning all information relevant to his job
and appreciation of those with whom he works that sets Brooke apart.

Brooke and his wife, Liz, have enjoyed a long and wonderful marriage and have raised three
beautiful and accomplished children. Brooke is a well-rounded person with many interests. He
is exceptionally well-read and well-informed. He has an engaging personality and excellent
sense of humor. But, his honesty, integrity and sterling character stand out above all else.

I whole-heartedly recommend R. Brooke Jackson to you for appointment as the next Federal
District Court judge for the United States District Court for the District of Colorado and
respectfully request that his name be moved forward for consideration at the April 13 hearing of
the Senate Judiciary Committee.

MRW:ko

5061890 l.DOCX

NOMINATION OF NANCY TORRESEN, OF
MAINE, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MAINE; NANNETTE
JOLIVETTE BROWN, OF LOUISIANA, NOMI-
NEE TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF LOUISIANA; WIL-
LIAM F. KUNTZ II, OF NEW YORK, NOMINEE
TO BE DISTRICT JUDGE FOR THE EASTERN
DISTRICT OF NEW YORK; HON. TIMOTHY M.
CAIN, OF SOUTH CAROLINA, NOMINEE TO
BE DISTRICT JUDGE FOR THE DISTRICT OF
SOUTH CAROLINA; AND HON. JOHN A.
ROSS, OF MISSOURI, NOMINEE TO BE DIS-
TRICT JUDGE FOR THE EASTERN DISTRICT
OF MISSOURI

WEDNESDAY, MAY 4, 2011,

U.S. Senate,

Committee on the Judiciary,

Washington, DC.

The Committee met, pursuant to notice, at 2:30 p.m., in room
SD-226, Dirksen Senate Office Building, Hon. Christopher Coons,
presiding.

Present: Senators Coons, Schumer, Grassley, and Graham.

Senator Coons. Good afternoon, everyone. I am pleased to call
this nominations hearing of the Senate Committee on the Judiciary
to order. I would like to welcome each of our nominees today and
their families and friends to the U.S. Senate and congratulate them
on their nominations. I would also like to welcome those of my col-
leagues who are here to introduce the respective nominees.

Today we welcome five nominees, beginning with Ms. Nancy
Torresen, nominated to be judge in the District of Maine. Ms.
Torresen currently serves as an Assistant U.S. Attorney in the
Criminal Division of the U.S. Attorney’s Office for the District of
Maine. If confirmed, Ms. Torresen would be the first woman to
serve as a Federal District Judge in Maine, and she will be intro-
duced by her home State Senators, Senator Snowe and Senator
Collins.

Next we welcome Ms. Nannette Brown, nominated to be a judge
for the Eastern District of Louisiana. Ms. Brown currently serves

(413)

414

as the city attorney for the city of New Orleans. If confirmed, she
also will be the first African-American woman to serve as a Federal
District Judge in Louisiana, and she will be introduced by her
home State Senators, Senators Landrieu and Vitter.

We also welcome Dr. William Kuntz, nominated to be a judge in
the Eastern District of New York. Dr. Kuntz is currently a partner
at the law firm of Baker Hostetler in New York and will be intro-
duced by his home State Senator, Senator Schumer.

We would also like to welcome Hon. Timothy Cain, who has been
nominated to be a judge in the District of South Carolina. Judge
Cain currently serves as a family court judge for the Tenth Judicial
Circuit of South Carolina, and he will be introduced by his home
State Senator, Senator Graham.

Finally, we would like to welcome Honorable John Ross, nomi-
nated to be a judge in the Eastern District of Missouri.

Judge Ross currently serves as the presiding judge for the 21st
Judicial Circuit of the State of Missouri. Perhaps that should be
“Missour-ee.” You can correct me either way, Senator.

[Laughter.]

Senator McCaskill. It is “Missour-ee” in St. Louis.

Senator Coons. It is “Missour-ee” in St. Louis. He will be intro-
duced by his home State Senator, Senator McCaskill, and perhaps
Senator Blunt may join us as well.

Given the large number of U.S. Senators from the respective
home States of the nominees, I will hold off on my opening state-
ment. Senator Grassley, when he joins us, may also have an open-
ing statement, which he is welcome to make at that time.

And I would like to thank all of the Senators who have come to
speak on behalf of their home State nominees this afternoon. I
know well how incredibly busy you are, but your presence and sup-
port speaks volumes about their qualifications, and I will invite
each of the Senators, if you so desire, to excuse yourselves after you
speak in introduction of your home State nominees.

So, first, we will proceed to hear from the Senators from the
State of Maine to introduce Ms. Torresen. Senator Snowe, please
proceed.

PRESENTATION OF NANCY TORRESEN, NOMINEE TO BE DIS-
TRICT JUDGE FOR THE DISTRICT OF MAINE, BY HON. OLYM-
PIA J. SNOWE, A U.S. SENATOR FROM THE STATE OF MAINE

Senator Snowe. Thank you, Mr. Chairman, and thank you for
giving us this opportunity. I am please to join my colleague Senator
Collins in recommending to the Committee Nancy Torresen as the
President’s nominee for the United States District Court for the
District of Maine. I have had the pleasure of meeting with Nancy
earlier this week, and she is a consummate professional and su-
premely qualified.

Coincidentally, I also happen to know her husband, Jay McClos-
key, who is a former classmate of mine from the University of
Maine, where we were good friends, and I cannot help but note
that he, too, was confirmed by the U.S. Senate in 1993 as U.S. At-
torney for Maine. So together as well as individually, they are quite
a powerhouse in the Maine legal community, not to mention a cou-
ple that never will be labeled as “underachievers.”

415

Mr. Chairman, Maine has one judicial district with three active
judgeships. If confirmed, Ms. Torresen will become only the 17th
judge to serve on our United States District Court over its 222-year
history. Significantly, she would also be the first woman to serve
on the court, as you mentioned — a watershed moment for our
States. Ms. Torresen would take the seat of Judge Brock Hornby,
who has served our State with the highest of distinction for 21
years. Indeed, just over a year ago, Judge Hornby received the
Devitt Award, a singular honor given annually for the last 29 years
to the outstanding Federal judge in the Nation. We are all indebted
to Judge Hornby for his unparalleled service.

Ms. Torresen brings a critical depth and breadth of experience to
this nomination as she has practiced law for 24 years across a
range of roles and responsibilities. She began her career as a law
clerk to Chief Judge Conrad Cyr of the United States District
Court. After 2 years with a well-known law firm here in Wash-
ington, Williams & Connolly, she returned to Maine for a career as
a prosecutor. All told, Ms. Torresen has served 14 years as an As-
sistant United States Attorney and 7 years as an Assistant State
Attorney General. The variety of positions she has held and the
facets of the legal realm in which she has practiced are significant
and would be multiple perspectives in the district court.

As an Assistant United States Attorney, Ms. Torresen has
worked 4 years in the Civil Division and 10 years in the Criminal
Division. Her civil practice has included contract disputes, medical
malpractice, and libel. Her criminal practice has included white-col-
lar crime cases, such as tax evasion and contract fraud. In her ex-
tensive criminal practice as an Assistant United States Attorney,
Ms. Torresen has been hands-on, handling everything from initial
referral of a case through post-conviction relief. That is the kind of
real-world experience that underscore her ability and her credi-
bility on the bench.

As an Assistant State Attorney General, Ms. Torresen worked in
the Appellate Section of the Criminal Division. There she rep-
resented Maine in the appeals of violent crime convictions. She
wrote 16 appeals, briefed 12 habeas corpus cases, and argued nine
murder cases. Ms. Torresen also served as an assistant to the Advi-
sory Committee on the Maine Rules of Civil Procedure.

Ultimately, Ms. Torresen will bring to the bench a diversity of
trial and appellate experience before Maine’s Federal magistrate
and our district and appellate judges. She would also bring to bear
the academic distinctions of having served as executive editor of
the University of Michigan Law Review as well as the professional
honor of receiving a unanimous well-qualified rating from the
American Bar Association. I am confident that Nancy Torresen will
serve the people of Maine and our Nation with integrity and excel-
lence, and should she be confirmed, as I hope she will be, Nancy
and Jay’s three children undoubtedly will be extremely proud of
their parents that not just one but both of them will have the U.S.
Senate endorsement.

Thank you, Mr. Chairman, and I look forward to the Committee’s
favorable review of Ms. Torresen’s nomination.

Senator Coons. Thank you, Senator Snowe.

Senator Collins.

416

PRESENTATION OF NANCY TORRESEN, NOMINEE TO BE DIS-
TRICT JUDGE FOR THE DISTRICT OF MAINE, BY HON. SUSAN

M. COLLINS, A U.S. SENATOR FROM THE STATE OF MAINE

Senator Collins. Thank you, Mr. Chairman, and thank you for
the courtesy in allowing us to proceed with our statements. Before
I give my formal remarks, I just have to remark on the fact that
it is wonderful to have two women Senators introducing the woman
who has been nominated to be the first female to be a Federal Dis-
trict Judge in Maine. In Nancy we get it right on the appropriate
ratios.

It is a great honor to appear before this distinguished Committee
to encourage the confirmation of Nancy Torresen. She is eminently
well qualified to be confirmed as U.S. District Judge for Maine. Ms.
Torresen has led an exemplary career of public service, culminating
in her current position as an Assistant U.S. Attorney. Let me tell
you a little more about her background to supplement what my col-
league Senator Snowe has already told you.

Ms. Torresen graduated from Hope College cum laude with a
B.A. in 1981 and received her law degree cum laude in 1987 from
the University of Michigan Law School, where she served as execu-
tive editor of the Law Review.

After graduation, she came to Maine to serve as a law clerk to
the extraordinarily well respected Judge Conrad Cyr. From 1988 to
1990, she worked at the law firm that is well known in this city
of Williams & Connolly. In 1990, she had the good judgment to re-
turn to Maine where she became an Assistant U.S. Attorney for the
District of Maine and initially handled civil matters involving Fed-
eral agencies.

In 1994, she was assigned to the Appellate Section of the Crimi-
nal Division of the Maine Attorney General’s office where she was
primarily responsible for representing the State of Maine in ap-
peals of serious violent crime convictions.

In 2001, Ms. Torresen returned to the U.S. Attorney’s Office
where she has been responsible for investigating and prosecuting
Federal crimes in the northern half of our State.

In conversations with Ms. Torresen, I was impressed by her dedi-
cation and passion for the law. I also appreciate her 21-year-long
commitment to public service. She has remarked that she is proud-
est of her criminal prosecution efforts because of the urgent need
to protect the public from violent criminals and her desire not to
let down the victims of violent crime.

One of her most significant cases recently was the prosecution of
a multi-state bank robber dubbed “The Burly Bandit.” This got a
great deal of publicity in Maine. From April through July, Robert
Ferguson robbed more than ten banks and credit unions through-
out New England. The spree ended with a robbery of Bangor Sav-
ings Bank in July, and on October 1st of last year, Mr. Ferguson
pleaded guilty in U.S. District Court in Bangor to 11 counts of
bank robbery. Ms. Torresen was recognized by our U.S. Attorney
for her outstanding work in coordinating the prosecution in six
States.

Except for her brief stint in the private sector, Ms. Torresen’s en-
tire career has been that of a dedicated public servant. She is very
well respected in the legal community, and as Senator Snowe men-

417

tioned, she has been rated as unanimous well qualified by the
American Bar Association.

But I want to share with the Committee my conversations with
members of the legal community in the State of Maine. One of
them was with Tim Woodcock, who is a well-known attorney in
Bangor, and his comments were very typical of what I heard when
I called and asked people what they thought of Ms. Torresen. Tim
said that he regards her as “highly professional, extremely capable,
tough but fair, and a strong advocate for the adherence by law en-
forcement to all legal requirements.” These are all qualities that we
should look for in our judicial nominees.

Ms. Torresen’s work as a prosecutor in both the Federal and
State judicial systems, her integrity, her temperament, and her re-
spect for precedent make her well qualified to serve as Maine’s
next Federal judge. Maine has a long and proud history of superb
Federal judges, and I believe that Nancy Torresen will continue
that tradition, if confirmed.

Thank you very much for the opportunity to appear before your
Committee.

Senator COONS. Thank you very much, Senator Collins and Sen-
ator Snowe.

I have received a request from my colleague on the Committee,
Senator Schumer, to be able to speak on behalf of his home State
nominee, Dr. Kuntz, given other commitments he has. With the for-
bearance of our three other colleagues who are also here to intro-
duce their home State nominees, I will proceed to defer to Senator
Schumer.

PRESENTATION OF WILLIAM F. KUNTZ II, NOMINEE TO BE DIS-
TRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK,

BY HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE

STATE OF NEW YORK

Senator Schumer. Well, thank you, and I know my colleagues
are waiting. I apologize for being late. I will ask that my entire
statement be read in the record and just be very brief.

First, it is an honor to introduce Dr. William F. Kuntz II, to the
Committee today. I have nominated a lot of people to the bench.
This guy’s credentials are just incredible. He grew up in the
projects called “The Polo Ground Projects,” went to Harvard Col-
lege and has actually four degrees from Harvard — I hope you will
not hold that against him — undergraduate, master’s degree in his-
tory, law degree, and a Ph.D. in American legal history. He then
went and spent 33 years as a litigation leader in one of New York’s
finest law firms, Baker & Hostetler.

And what impressed me the most — and there were many
things — he served 23 years on the Civilian Complaint Review
Board. That is where citizens bring complaints about police officers.
It is a hotbed. It is like serving on the Ethics Committee here, but
much worse. No one wants to do it, and someone has to do it. He
was respected by both sides — the people complaining and the po-
lice. He was moderate, he was thoughtful, and he did everything
that was fact based. And he stayed on 23 years and is looked to
by everyone in New York as the expert on this issue.

418

When in private practice, one of the things he did was recover
money from those who steered clients to Bernie Madofif. He has
been part of the Legal Aid Society, the Practicing Law Institute,
and he is also — two other points, and then I will yield to my col-
leagues. He is one of the nicest people you would ever want to
meet. He is just a fine human being, sort of well respected, beloved
in certain circles in New York. And the only other two things I
would say to my colleagues, he is a true moderate. I try to nomi-
nate people not from the far right and not from the far left, because
they both try to make law rather than follow the law. And, second,
the Eastern District of New York, my home district, on which he
would serve, is a judicial emergency district. In other words, we are
desperately short of judges on that. I would ask unanimous consent
that my entire statement be read in the record. I thank my col-
leagues or their indulgence and congratulate Mr. Kuntz on his
nomination, and I am hopeful we can have a speedy confirmation
process for you, sir.

Senator Coons. Without objection.

The prepared statement of Senator Schumer appears as a sub-
mission for the for record]

Senator Coons. Thank you, Senator Schumer, for those com-
ments on behalf of Dr. Kuntz.

We will now proceed to the Senators from Louisiana, who will be
speaking by way of introduction on behalf of Ms. Brown. Senator
Landrieu.

PRESENTATION OF NANNETTE JOLIVETTE BROWN, NOMINEE

TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF

LOUISIANA, BY HON. MARY L. LANDRIEU, A U.S. SENATOR

FROM THE STATE OF LOUISIANA

Senator Landrieu. Thank you, Mr. Chairman and distinguished
members of this panel. It is with great pleasure and pride that I
present to you today Mrs. Nannette Jolivette Brown, a nominee for
judge in the Eastern District of Louisiana. I was extremely pleased
to submit her name for consideration to President Barack Obama
for this appointment.

Mrs. Brown is joined today by her very supportive husband,
Marcus Brown, and her two very proud children — Christopher
Dylan and Rachel — and they are all with her today in this room.

Mrs. Jolivette Brown has rightfully garnered the support of both
of her home State Senators, and I am so pleased to be joined by
my colleague Senator Vitter in support of this nominee.

Mrs. Brown is equipped with a remarkable array of legal experi-
ences, Mr. Chairman, which range from law professor to legal liti-
gator and mediator for one of the most established and well-re-
spected law firms in our State. She has also held several high-level
positions with the city of New Orleans, having first been appointed
only at the age of 30 to head one of our departments and now
serves as city administrator, city attorney for the city of New Orle-
ans.

Her life has been committed to justice and fairness, and her own
personal experiences have dictated a great deal about the way she
operates, the way she thinks, her heart for justice and compassion.

419

Nannette Brown grew up at a time, sadly, in Louisiana’s history
where she and her younger brothers literally had to sit at the back
of the bus as those buses made their way through the city of New
Orleans. So she brings with her to this bench not only a commit-
ment to justice learned in the classrooms and learned along the
way in her career, but a real heartfelt commitment to the indig-
nities suffered when the law is not where it needs to be.

After putting herself through college and law school, one of the
country’s most prestigious firms, as I said, Adams & Reese, imme-
diately hired her. She made a quick name for herself as a com-
petent and energetic young attorney.

She has earned an L.L.M. in energy and environmental law from
Tulane as well as mediation certificates from both Loyola and Har-
vard. These advanced degrees, in addition to the decades of prac-
tical experience, her own life experience, numerous articles that
she has published have promoted her, and she is understood to be
one of the leading figures in our legal community. She has also,
Mr. Chairman, served as professor of law at Southern University,
Loyola Law School, and Tulane, among many other subjects that
she taught, Federal Civil Procedure.

I must also say outside of the classroom she exemplifies leader-
ship and compassion as well. Outside of the courtroom, she exem-
plifies, and outside of the legal community. After Katrina, which I
think is very telling, when all of us were busy getting our own lives
and families back together, Nannette and her family were in Hous-
ton. She had a lot to do with getting her own family situated. But
as Nannette would, she found a way to put others ahead of herself.
Within a few short months, she had not only joined the Big Broth-
ers and Big Sisters organization of Houston, but she was spear-
heading that organization’s effort to mentor children who had been
displaced from New Orleans so that they could get their way more
secure and find a way home more carefully.

So on behalf of so many people from the city of New Orleans, the
State of Louisiana, from her many professors, her many friends,
her many peers that she served with in the legal community, it is
absolutely my pride and joy to present her to this Committee.

I want you all to know in closing that, should your Committee
give her your approval and she move on to the Senate for confirma-
tion, Nannette will become the first African-American woman to
ever serve as an Article III judge in Louisiana’s history. It is a fit-
ting achievement for someone who has devoted so much to equal
protection and application of the law.

Senator COONS. Thank you, Senator Landrieu.

Senator Vitter.

PRESENTATION OF NANNETTE J OLIVETTEBRO WN, NOMINEE

TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF

LOUISIANA, BY HON. DAVID VITTER, A U.S. SENATOR FROM

THE STATE OF LOUISIANA

Senator Vitter. Thank you, Mr. Chairman and members, and I
am very pleased to join Senator Landrieu in introducing and
strongly supporting Nannette Jolivette Brown for this position on
the Eastern District Court of Louisiana, and it is a real honor for
me and it is a great personal pleasure for me. Ms. Brown and I

420

were classmates at Tulane Law School. We both got our J.D. there.
But she went further. She also got her L.L.M. at Tulane, special-
izing in energy and environmental law, as Senator Landrieu men-
tioned.

She has a wealth of background and experience and expertise
that she will bring to this job. Of course, right now, as was men-
tioned, she is city attorney for New Orleans. It is a very wide-rang-
ing, very challenging position, basically the top lawyer for all city
issues. She has done a number of things, including mediate over
100 cases, for instance, right after Hurricanes Katrina and Rita as
part of the Louisiana Hurricane Mediation Program. She is a real
expert in environmental law in particular, with an advanced degree
in that. She has taught, as Senator Landrieu said, a number of
places: Loyola Law School, Southern Law Center, and she was a
teaching fellow at Tulane Law School.

So she does bring a real wealth of public and private sector expe-
rience to the Federal bench. She also brings a great deal of com-
mon sense, a wonderful, warm, calm personality that will be per-
fectly suited to the right demeanor a judge should have. And so it
is a real pleasure for me to help introduce her and to strongly sup-
port her confirmation.

Thank you, Mr. Chairman.

Senator COONS. Thank you, Senator, and thank you,

Senator Landrieu.

Now I would like to invite Senator McCaskill to introduce Judge
Ross from Missouri.

PRESENTATION OF HON. JOHN A. ROSS, NOMINEE TO BE DIS-
TRICT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI,

BY HON. CLAIRE McCASKILL, A U.S. SENATOR FROM THE

STATE OF MISSOURI

Senator McCaskill. Thank you, Mr. Chairman, and my thanks
to the Committee for holding this hearing today so these important
nominees can move forward in our process.

It is my pleasure today to introduce to the Committee John Ross,
and I have a bias, and my bias is that there are people who choose
to labor in the field of public service as it relates to the law, and
that many times they are overlooked in terms of their skill and
their ability to administer justice in our country, especially at the
Federal level. So my bias is showing today because of who John
Ross is and what he has accomplished.

John Ross graduated from law school in the late 1970’s and very
quickly moved into a job where he was an assistant prosecutor, an
assistant prosecutor at the State level. And, once again, I have a
bias, and my bias is that State-level prosecutors do not get to pick
which cases they handle. They respond to 911 calls, and they take
all cases. They do not get to decide that their time is only worthy
of a certain kind of case. And John Ross worked his way up in the
largest prosecutor’s office in the State at that time, in St. Louis
County, eventually becoming the chief trial attorney in that office.

This is a man who has tried more than 50 jury trials in his ca-
reer. In my humble opinion, there is no better place to learn how
to be a good judge than in the courtroom. And in the courtroom,
you get to see lots of different judges in a very up close and per-

421

sonal way because you are in the trenches actually trying those
cases week in and week out. And you learn about judicial de-
meanor. You learn about judges that get robe-itis, that all of a sud-
den decide that their judgment cannot be questioned and that they
do not have time to listen carefully, not just to the lawyers in front
of them, but to the witnesses and to the plaintiffs and to the de-
fendants. And it is, I think, that experience that uniquely qualifies
John Ross to take this important position on our Federal bench.

He was selected to join the State bench, and for 11 years he has
been a circuit judge in the busiest circuit in Missouri. And we have
a system in Missouri where judges are reviewed by the lawyers,
and this is done anonymously so it is pretty darn accurate. And the
judges that get these surveys from the lawyers always wait with
bated breath as to how the lawyers are going to rate them.

John Ross always gets if not the highest, one of the very highest
ratings in St. Louis Circuit Court because of the way he handles
his courtroom, because of the way he respects the lawyers, because
of his fairness, because of his love of the law and his ability to not
only just administer justice but really work at it — I mean, really,
really work at it. And so since 2009 he has, in fact, been the pre-
siding judge of the busiest circuit in the State of Missouri.

So it is that background that qualifies him to take the Federal
bench, a trial bench, where he will draw upon more than a decade
of service as a State trial judge, more than a decade of service try-
ing probably more jury trials than 95 percent of these nominations
that come in front of this Committee. And I think that is more im-
portant, frankly, than his degree, although his degree is from a
great university, Emory University, both his undergraduate and
law degree, and I think in many ways more important than many
of the other qualifications that are sometimes emphasized in these
hearings.

He also is very active in the community and particularly in the
area of family violence and shelters for battered women. He has
also been very active in raising money for a charity that many of
us are very partial to because it honors a man who served as an
elected official in St. Louis County for many years who was struck
down very young in his life and who John had the honor of working
for in St. Louis when he ran the county counselor’s office for Buzz
Westfall, who is the former county executive.

So I think he is going to be one terrific Federal judge. I highly
recommend him to you. I think he will be the kind of judge that
all lawyers will look forward to working in front of and that all of
us will be proud of for many years to come.

Thank you, Mr. Chairman, and thank you for the time of the
Committee.

Senator COONS. Thank you very much, Senator McCaskill.

Next we will turn to the Senator from South Carolina, who will
introduce to the Committee Judge Cain.

Senator Graham.

422

PRESENTATION OF HON. TIMOTHY M. CAIN, NOMINEE TO BE

DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA,

BY HON. LINDSEY GRAHAM, A U.S. SENATOR FROM THE

STATE OF SOUTH CAROLINA

Senator Graham. Thank you, Mr. Chairman.

Senator McCaskill has a bias. I have a big one. Tim used to be
my law partner.

[Laughter.]

Senator Graham. And I hope he can get confirmed in spite of
that. He has been a family court judge for 11 years, I think. And
you talk about the ability to make hard decisions fairly quickly.
That is the ultimate legal experience, I think, is to be a family
court judge sitting over child custody cases, dealing with abused
children complaints, trying to be fair when it comes to the economic
equities of a marriage that is broken. You really meet the human
condition in family court in every way possible. And how he did
this for 11 years I will never know. He is a far better man than
I am, and let me tell you, I think most people in South Carolina
would say that Tim Cain is one of the best lawyers and judges we
have ever produced.

His wife, Renee, is a social worker, also a very dear friend. She
has seen a tough side of life. So we are going to have a man go
on the bench in South Carolina, I hope, who has seen just about
everything you could see, and he has tried to be as fair as possible.
And what more contentious issue than deciding who gets a child?
Every lawyer almost without exception would tell you that he did
his job in the most outstanding fashion.

He was a city attorney and he was a county attorney, so he un-
derstands local government issues and how it is to advise politi-
cians, which I would not wish on anybody, legally. He has been an
assistant prosecutor and an assistant public defender. So he has
sat on both sides. He understands what it is like to defend some-
body, and he also understands what it is like to represent a victim
of crime.

He was chosen by our Supreme Court Chief Justice, Jean Toal,
to sit on our Supreme Court for a period of time when an opening
became available, which I think spoke volumes — which I believe
speaks volumes about Tim’s legal ability and respect.

He was qualified by the ABA without exception. His son, Martin,
got a new suit for this hearing. We went to dinner last night, got
a new sports jacket, so this was good for the economy, Mr. Chair-
man.

[Laughter.]

Senator Graham. And I want to thank President Obama. He cer-
tainly did not have to do this. And Tim will be not a Republican
judge and not a Democratic judge. He will be a lawyer’s judge. I
think he will administer justice at the Federal level in a way that
we could all be proud of, and we have a strong tradition in South
Carolina of putting qualified people on the bench no matter what
party is in power. And we are going to continue that tradition with
Tim Cain, literally one of the nicest people I have ever met in my
life. And when this job is over, as a Senator there are a lot of
things you can look back on, hopefully to be proud of, and some
mistakes we will all make, but I can tell you without any doubt one

423

of the proudest moments I have had being a U.S. Senator from
South Carolina is getting to introduce Tim and recommending him
to the President and hopefully getting the vote on the floor of the
Senate soon for his confirmation.

Thank you, Mr. Chairman.

Senator Coons. Thank you, Senator. I would like to thank all of
the home State Senators who have spoken on behalf of our five
nominees today.

Before we proceed to the testimony, I will take a moment for an
opening statement and then invite Senator Grassley as well.

STATEMENT OF HON. CHRISTOPHER COONS, A U.S. SENATOR
FROM THE STATE OF DELAWARE

Senator Coons. I would just like to take a moment and note that
so far in the 112th Congress the Senate has indeed increased the
pace at which district court nominees are being confirmed. Through
bipartisan cooperation over the last several months, we have been
able to achieve a modest but significant reduction in the overall
number of judicial vacancies.

More work does remain to be done. Ten percent of Federal judge-
ships still sit vacant; 37 of these are considered judicial emer-
gencies, vacancies that have lasted more than 18 months and have
caused other judges on the same courts to take on an overly bur-
densome caseload. And today Attorney General Holder testified be-
fore this very Committee that the number and duration of vacan-
cies has created a crisis in our Federal courts. This is not a par-
tisan issue. Chief Justice Roberts has similarly noted that the pro-
longed vacancies are causing acute difficulties for some judicial dis-
tricts.

The Senate as a body can help alleviate this crisis by acting on,
I believe, 44 judicial nominations that have been referred to us,
and the majority are wholly noncontroversial and should be con-
firmed as promptly as possible.

I am disheartened, however, today that the Senate stands poised
to spend 30 hours over the coming days engaged in a protracted
post-cloture debate regarding the nomination of one U.S. district
court judge, Jack McConnell, nominated for the District of Rhode
Island. To have to file cloture on a district court nominee with the
unanimous support of his home State Senators is nearly unprece-
dented. In fact, research by my staff shows only three cloture peti-
tions have ever been filed for district court nominees. Democrats
did not filibuster a single nominee to the district court during
President Bush’s administration, and my real hope is that the acri-
mony concerning Mr. McConnell is just a bump in the road and
does not signal any escalation of the partisan rancor surrounding
judicial nominees that may have characterized previous Con-
gresses.

The five nominees sitting before us today are, as we have heard
from their home State Senators, outstanding qualified nominees,
and they certainly deserve a prompt and thorough consideration. I
look forward to continuing the great progress we have made by
working with Chairman Leahy, Ranking Member Grassley, and my
fellow Judiciary Committee members to consider these nominees in
a thorough and expeditious manner.

424

Senator Grassley.

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR
FROM THE STATE OF IOWA

Senator Grassley. Thank you, Mr. Chairman.

In the first few months that I have been Ranking Member of the
Judiciary Committee, as you just stated, we have worked in good
faith together to forward consensus nominees. As I said a couple
of days ago, by any fair measure we are moving nominees at a
brisk pace. The Senate has been in session only 44 days this Con-
gress, and in that short period of time, we have confirmed 19
judges. In fact, thus far we have taken positive action on 43 of 63
nominees submitted to the Congress. I want to emphasize that we
have taken positive action, in a percentage form, on 68 percent of
the judicial nominees to the Congress. And I do not have any rea-
son to believe at this point, unless something comes up that I do
not know about, that these will be controversial that we are hear-
ing from today. So I am glad to welcome the nominees appearing
before us today.

Each of them are nominated to be a District Judge. Of course,
you all have family and friends that you are proud of, and we wel-
come them as well. Your qualifications and backgrounds have been
thoroughly vetted and reviewed. Today is when the public gets the
opportunity to hear from you directly. So, of course, I welcome you
all and look forward to your testimony.

I have a longer statement I am going to insert in the record.

Senator Coons. Without objection.

Senator Grassley. Thank you.

[The prepared statement of Senator Grassley appears as a sub-
mission for the for record.]

Senator COONS. Thank you very much, Senator.

Now I would like to ask the five nominees to step forward and
please remain standing at your places. If you would please raise
your right hands and repeat after me. Do you solemnly swear that
the testimony you are about to give to the Committee will be the
truth, the whole truth, and nothing but the truth, so help you God?

Judge Ross. I do.

Judge Cain. I do.

Ms. Jolivette Brown. I do.

Ms. Torresen. I do.

Mr. Kuntz. I do.

Senator COONS. Thank you, and let the record show the nomi-
nees have been duly sworn and taken the oath, and please be seat-
ed.

And now each of the five nominees will in turn have an oppor-
tunity to recognize their family and friends and to give an opening
statement.

Ms. Torresen, starting with you, I welcome you to acknowledge
family members or friends you have here today and then to offer
your opening statement. Ms. Torresen.

STATEMENT OF NANCY TORRESEN, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF MAINE

Ms. Torresen. Thank you, Senator Coons.

425

I want to thank Senator Coons and Senator Grassley for con-
vening this hearing today. I want to thank President Obama for
nominating me for this position, and I would like to thank particu-
larly Senators Snowe and Collins for their very kind introductions.
And I would like to introduce my family to you.

Right behind me is my husband, Jay McCloskey, and then my
daughter is here, Abby McCloskey, behind him. My niece is next
to her, AnneMarie Torresen. Beyond those two in the third row is
my mother, Frances Torresen, and my brother, David Torresen.
And in the back there is my brother, Robert Torresen as well. I
know my father, who is deceased, is with us in spirit, and I also
have two children at home, Jack McCloskey and Lilly McCloskey,
who could not make it today because of school commitments. But
I am sure they are with us in spirit as well.

I have no opening statement, and I would be happy to answer
any questions that you have.

[The biographical information of Ms. Torresen follows:]

426

UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY

QUESTIONNAIRE FOR JUDICIAL NOMINEES

PUBLIC

1. Name : State full name (include any former names used).

Nancy Torresen
Nancy Torresen Hamtnar

2. Position : State the position for which you have been nominated.

United States District Judge for the District of Maine

3. Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.

United States Attorney’s Office
202 Harlow Street, Room 1 1 1
Bangor, Maine 04401

4. Birthplace : State year and place of birth.

1959; Ridgewood, New Jersey

5. Education : List in reverse chronological order each college, law school, or any other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.

1984 - 1987, University of Michigan Law School, J.D. ( cum laude ), 1987
1977— 1981, Hope College, B.A. ( cum laude), 1981

6. Employment Record : List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation
from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.

2001 - Present

United States Attorney’s Office for the District of Maine
202 Harlow Street, Room 1 1 1
Bangor, Maine 0440 1

Assistant United States Attorney Assigned to the Criminal Division

427

1994-2001

Maine Department of the Attorney General
State House Station 6
Augusta, Maine 04444

Assistant Attorney General Assigned to the Criminal Division, Appellate Section
(Assistant United States Attorney Assigned to the Maine Department of the Attorney
General)

1990-1994

United States Attorney’s Office for the District of Maine
99 Franklin Street
Second Floor
Bangor, Maine 04401

Assistant United States Attorney Assigned to the Civil Division

(After my first child was bom in 1991 -prior to passage of the Family Medical Leave

Act - 1 resigned my position for ten months and was rehired in July of 1992.)

1988- 1990
Williams and Connolly
725 Twelfth Street, NW
Washington, D.C. 20005
Associate

1987-1988

Honorable Conrad K. Cyr
202 Harlow Street
Bangor, Maine 04401
Judicial Clerk

Summer 1986
Williams and Connolly
725 Twelfth Street, NW
Washington, D.C. 20005
Summer Associate

Summer 1985

Jaffe, Snider, Raitt & Heuer
1800 First National Building
Detroit, Michigan 48226
Summer Associate

2

428

1982-1984

Association for Child Development
139 Lake Lansing Road, Suite 120
East Lansing, Michigan 48823
Administrative Assistant

1981 - 1982
Midland Daily News
124 MacDonald Street
Midland, Michigan 48640
Reporter (free lance; part-time)

1981 - 1982
Bay City Foundry
26 1 1 Center Street
Bay City, Michigan 48707
Sales Correspondent

Summer 1981
CoroTech, Incorporated
17181 Taft Street
Spring Lake, Michigan 49456
Office Manager

Other Affiliations

2006 - 2009

Mabel Wadsworth Women’s Health Center
700 Mount Hope A venue, Suite 420
Bangor, Maine 04401
Member, Board of Directors

7. Military Service and Draft Status : Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.

I have not served in the military. I have not registered for selective service.

8. Honors and Awards : List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.

United States Department of Agriculture, Office of Inspector General, Awaid of
Excellence (2006)

Executive Editor of the University of Michigan Law Review (1986 - 1987)

3

429

Howard B. Coblentz Prize (1986 - 1987)

Associate Editor of University of Michigan Law Review (1985 - 1986)

Bodman Longley Award (1985 - 1 986)

Writing and Advocacy Certificate of Merit

Member of Mortarboard Society at Hope College

Member of Psi Chi - Psychology Honors Society at Hope College

9. Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.

Advisory Committee on the Maine Rules of Civil Procedure

Special assistant on the drafting of Rule 66 of the Maine Rules of Civil Procedure
and Rule 42 of the Maine Rules of Criminal Procedure (1 996)

John Waldo Ballou American Inns of Court
Maine Bar Association

National Association of Assistant United States Attorneys
Delegate from Maine (2007 - 2009)

Penobscot County Bar Association

10. Bar and Court Admission :

a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.

Michigan, 1988. I have never practiced in Michigan and my license is inactive
there.

District of Columbia, 1989. I resigned this membership after 1 joined the Maine
bar.

Maine, 1993. There have been no lapses in my membership.

b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
in membership. Give the same information for administrative bodies that require
special admission to practice.

United States Court of Appeals for the First Circuit, 1998
United States District Court for the District of Maine, 1 990
Courts of the State of Maine, 1 993
District of Columbia Court of Appeals, 1989
Courts of the State of Michigan, 1988

4

430

I assume that my admission in the courts of the State of Michigan and the District
of Columbia have lapsed since my memberships in their respective bars are now
inactive. Otherwise, there have been no lapses in membership.

1 1. Memberships :

a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 10 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership or participation, and indicate any office you held.
Include clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.

Bangor Parks and Recreation, Soccer Coach (1997 - 2004)

Bangor Public Schools, Parent Teacher Organization (1996 - 2007)

Lucerne Beach Club (1997 - present)

Mabel Wadsworth Women’s Health Center Development Committee (2005)
Penobscot Valley Country Club (2004 & 2006)

Penobscot Theater Company (1987-1988)

b. The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion, or national
origin. Indicate whether any of these organizations listed in response to 1 la above
currently discriminate or formerly discriminated on the basis of race, sex, religion
or national origin either through formal membership requirements or the practical
implementation of membership policies. If so, describe any action you have taken
to change these policies and practices.

To my knowledge, none of the organizations listed in response to 1 la above
currently discriminates or formerly discriminated on the basis of race, sex,
religion, or national origin either through formal membership requirements or the
practical implementation of membership policies.

12. Published Writings and Public Statements :

a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Supply four (4) copies of all published
material to the Committee.

Critical of YWCA , Letter to the Editor in Bangor Daily News, Apr. 27, 1995.

Copy supplied.

Book Note, 84 U. Mich. L. Rev. 974 (1986). Copy supplied.

5

431

Fixing Old Fashioned Feast Takes Energy, Experience, Organization, Midland
Daily News, Nov. 26, 1981, at 3. Copy supplied.

Epilepsy Misunderstood, Midland Daily News, Nov. 25, 1981, at 8. Copy
supplied.

Organists Play Supporting Role, Midland Daily News, Nov, 21, 1981 at 9. Copy
supplied.

Women Should Review and Update Credit Rating, Midland Daily News, Nov. 6,
198 1 , at 6. Copy supplied.

Multinational Companies Study Results Presented , Midland Daily News [date
unavailable] at 8. Copy supplied.

Friendliness, Openness Part of the Lifestyle in Beaverton, Midland Daily News,
[date unavailable]. Copy supplied.

Pianist-Teacher Enjoys her Life , Midland Daily News, [date unavailable]. Copy
supplied.

New Chaplain Interviewed, Hope College Anchor, Feb. 8, 1 979. 1 have been
unable to obtain a copy of this article.

Van Heest Gels Committee 's Nod, Hope College Anchor, Dec. 1, 1978, at 1.

Copy supplied.

High Schoolers Simulate Hope United Nations, Hope College Anchor [date
unavailable]. Copy supplied.

JoffreySays Yes : Hahn and Riffel Create 'Ritual', Hope College Anchor [date
unavailable]. Copy supplied.

Commentary; House Losses Cause of Commotion, Hope College Anchor [date
unavailable]. Copy supplied.

New PR Film Shows Signs of Hope, Hope College Anchor [date unavailable].
Partial copy supplied.

Out and Back Again: Student Treks Evaluated , Hope College Anchor [date
unavailable]. Copy supplied.

From May to You: Education Abroad, Hope College Anchor, [date and
unavailable]. Copy supplied.

6

432

b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, give the
name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.

Juvenile Crime, Drug Abuse, Domestic & Sexual Violence and Hate Crimes in
Maine, A Report of the Anti-Crime, Anti-Violence Advisory Committee to
Congressman John E. Baldacci, April 1 997. Although I was not a member of the
Committee, I attended public hearings and private sessions of the Committee and
prepared a report which contained summaries of the testimony heard by the
committee and recommendations of the committee. A copy of that report is
supplied.

Advisory Committee on the Maine Rules of Civil Procedure, Special assistant on
the drafting of Rule 66 of the Maine Rules of Civil Procedure and Rule 42 of the
Maine Rules of Criminal Procedure, 1996. I have been unable to obtain copies of
the drafts of those rules submitted during my tenure on the committee, but have
supplied copies of the rules as they exist currently.

c. Supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.

1 have not testified or made any official statements or other communications
relating to matters of public policy or legal interpretations to public bodies or
public officials.

d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by you, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk. If you do not have a copy of Ihe speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.
If you did not speak from a prepared text, furnish a copy of any outline or notes
from which you spoke.

I have not given any speeches or talks.

e. List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.

7

433

As a general rule, during my career at the United States Attorney’s Office, I have
not spoken with the press. On a few occasions, I have spoken with a reporter
outside the courtroom.

On October 1, 2010, 1 participated in a press conference with the United States
Attorney about a serial bank robber. While I do not have a transcript or
recording, I was quoted by some of the media outlets that attended the press
conference and others picked up the story. Most of the articles tracked an AP
story which quoted me. I have supplied the AP story and any additional articles
that I could find which contained a different quote than Ibat used by file AP
article. These articles are listed below:

Dawn Gagnon, ‘Burly Bandit ' Pleads Guilty to 1 1 Bank Heists, Bangor Daily
News, Oct. 2, 2010. Copy supplied.

David Itench, 'Burly Bandit ’ Faces Prtson After Plea to 11 Bank Robberies,
Portland Press Herald, Oct. 2, 2010. Copy supplied.

Dan Ilerbeck, ‘Burly Bandit' Pleads Guilty in Maine to 1 1 Holdups, Buffalo
News, Oct. 2, 2010, Copy supplied.

David Sharp, 'Burly Bandit ’ Pleads Guilty to 11 Robberies, Associated Press,
Oct 1,2010. Copy supplied.

Listed below are additional articles quoting comments that I believe were made
outside the courtroom.

Jason Schreiber, Burly Bandit Gets 1 0 Years for Multi-State Robbery Spree,
Union Leader, Feb. 25, 201 1. Copy supplied.

Eric Russell, Jonesport Woman Who Embezzled SSOKfrom Union Sentenced,
Bangor Daily News, Feb. 24, 201 1. Copy supplied.

Judy Harrison, Man Gets Jail in Illegal Aliens Case, Bangor Daily News, Mar. 3,
2010. Copy supplied.

Judy Harrison, Hampden Child Pornographer Faces Supervised Release for Life,
Bangor Daily News, Sept. 13, 2006. Copy supplied.

Doug Harlow, Man Gets 3 Years for Possessing Shotgun, Morning Sentinel, Mar.
28,2006. Copy supplied.

Judy Harrison, Two Indicted in Robbery of Skowhegan Pharmacy, Bangor Daily
News, Aug. 8, 2003. Copy supplied.

8

434

Darla L. Pickett, Pair Indicted in Armed Robbery, Morning Sentinel, Aug. 8,
2003. Copy supplied.

Bangor Man in Court on Child Porn Charges , Bangor Daily News, Jan. 30, 2002.
Copy supplied.

Debra Sund, Court Denies Appeal in Stabbing Death , Bangor Daily News, Nov.
1,2000. Copy supplied.

John S. Day, Jumbled Memories of a Shrinking Male Brain, Bangor Daily News,
Oct. 17, 1996. Copy supplied.

Patricia Harper 's Conviction Upheld; Request for Third Murder Trial Denied,
Bangor Daily News, Feb. 28, 1996. Copy supplied.

Rick Levasseur, 'Guys and Dolls' a Community Affair , Bangor Daily News, Oct.
23, 1987. Copy available at

http://news.aoogle.cotn/newsDat]ers?id--aodJAAAAIBA J &siid=DA4NAAAAIB
A J&pe^SS 1,33821 90&dQ=nancv+tcirresen&hl=en .

1 3. Judicial Office : State (chronologically) any judicial offices you have held, including
positions as an administrative law judge, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.

I have not served as a judge.

a. Approximately how many cases have you presided over that have gone to verdict
or judgment?

i. Of these, approximately what percent were:

jury trials:

%

bench trials:

%

civil proceedings:

%

criminal proceedings:

%

b. Provide citations for all opinions you have written, including concurrences and
dissents.

c. For each of the 10 most significant cases over which you presided, provide: (1) a
capsule summary' of the nature the case; (2) the outcome of the case; (3) the name
and contact information for counsel who had a significant role in the trial of the
case; and (3) the citation of the case (if reported) or the docket number and a copy
of the opinion or judgment (if not reported).

9

435

d. For each of the 1 0 most significant opinions you have written, provide: ( 1 )
citations for those decisions that were published; (2) a copy of those decisions that
were not published; and (3) the names and contact information for the attorneys
who played a significant role in the case.

e. Provide a list of all cases in which certiorari was requested or granted.

f. Provide a brief summary of and citations for all of your opinions where your
decisions were reversed by a reviewing court or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings. If
any of the opinions listed were not officially reported, provide copies of the
opinions.

g. Provide a description of the number and percentage of your decisions in which
you issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored.

h. Provide citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, provide copies of the opinions.

i. Provide citations to all cases in which you sat by designation on a federal court of
appeals, including a brief summary of any opinions you authored, whether
majority, dissenting, or concurring, and any dissenting opinions you joined.

1 4. Recusal: If you are or have been a judge, identify the basis by which you have assessed
the necessity or propriety of recusal (If your court employs an "automatic” recusal system
by which you may be recused without your knowledge, please include a general
description of that system.) Provide a list of any cases, motions or matters that have
come before you in which a litigant or party has requested that you recuse yourself due to
an asserted conflict of interest or in which you have recused yourself sua sponte. Identify
each such case, and for each provide the following information:

I have not served as a judge.

a. whether your recusal was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any other person or interested party; or if you
recused yourself sua sponte;

b. a brief description of the asserted conflict of interest or other ground for recusal;

c. the procedure you followed in determining whether or not to recuse yourself;

d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any
other ground for recusal.

10

436

15. Public Office. Political Activities and Affiliations :

a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, state chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.

I have never held public office. I have never run for any elective office. I have
never been nominated to any appointed office.

b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election committee. If you have ever
held a position or played a role in a political campaign, identify the particulars of
the campaign, including the candidate, dates of the campaign, your title and
responsibilities.

I have never held a paid position in a political party or election committee. I
served very briefly as a local treasurer for Pamela Chase, a candidate to the Maine
House of Representatives in 1992. I resigned the post when I returned to work at
the United States Attorney’s Office in July of 1 992. In 1 994, my name appeared
in an advertisement along with many others as individuals who supported Joe
Brennan for Governor of Maine.

16. Legal Career: Answer each part separately.

a. Describe chronologically your law practice and legal experience after graduation
from law school including:

i. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;

From 1987 to 1988, 1 served as a law clerk to the Honorable Conrad K.
Cyr who at the time was Chief Judge of the United States District Court
for the District of Maine.

ii. whether you practiced alone, and if so, the addresses and dates;

I have never practiced alone.

iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.

11

437

1988- 1990
Williams and Connolly
725 Twelfth Street, NW
Washington, D.C. 20005
Associate

1990-1994

United States Attorney’s Office for the District of Maine
202 Harlow Street, Room 1 1 1
Bangor, Maine 04401

Assistant United States Attorney Assigned to the Civil Division
1994-2001

Maine Department of the Attorney General
State House Station 6
Augusta, Maine 04444

Assistant Attorney General Assigned to the Criminal Division, Appellate
Section (Assistant United States Attorney Assigned to the Maine
Department of the Attorney General)

2001 - present

United States Attorney’s Office for the District of Maine
202 Harlow Street, Room 1 1 1
Bangor, Maine 04401

Assistant United States Attorney Assigned to the Criminal Division

iv. whether you served as a mediator or arbitrator in alternative dispute
resolution proceedings and, if so, a description of the 10 most significant
matters with which you were involved in that capacity.

I have never served as a mediator or arbitrator.

b. Describe:

i. the general character of your law practice and indicate by date when its
character has changed over the years.

From 1 988 to 1 990, 1 worked as an associate with Williams and Connolly.
I was responsible for both civil and criminal matters. My civil practice
included medical malpractice, libel, and contract dispute cases. My
criminal practice involved white collar cases, including government
contract fraud, tax evasion, and regulatory fraud.

From 1990 to present, I have been an Assistant United States Attorney.
My career over the last twenty years can be divided into three distinct
periods - the civil years, the appellate years and the criminal years.

12

438

Throughout this time, I have always been involved in litigation, but it has
taken place in different courts for different reasons.

In the early 1990s, I was assigned to the civil division of the United States
Attorney’s Office in Maine litigating civil cases involving federal
agencies. 1 defended the Veteran’s Administration in medical malpractice
matters and defended other federal agencies in personal injury and
employment discrimination cases. I handled affirmative civil actions for
regulatory agencies, such as the FDA, and I brought a civil suit against a
German citizen for interfering with a flight crew. I also protected federal
interests in bankruptcy cases.

From 1994 to 2001, 1 was designated by the Justice Department to the
Maine Department of the Attorney General. Criminal Division, Appellate
Section. With the Maine Attorney General’s office, I was primarily
responsible for representing the State of Maine in appeals of serious
violent crime convictions. I wrote the Slate’s briefs in sixteen appeals. I
argued nine murder cases and two manslaughter cases before the Maine
Supreme Judicial Court sitting as the Law Court. 1 wrote the State’s briefs
and argued a successful State’s appeal of a gross sexual assault case. I
briefed a dozen habeas corpus cases in the United States District Court.
Three of the habeas cases were appealed to the United States Court of
Appeals, and I argued two of those appeals before the First Circuit. In the
lower state courts, I defended the constitutionality of state statutes,
including the stalking statute, the protection from abuse statute, and the
animal cruelty statute. I handled numerous miscellaneous matters
including a juvenile manslaughter adjudication appeal, a termination of
parental rights appeal, and I participated at various motions hearings
before State judges. I volunteered to work on civil rights cases for the
Public Protection Unit of the Department of the Attorney General. In
addition, I assisted the Advisory Committee on the Maine Rules of Civil
Procedure in drafting new rules on contempt proceedings (Me. R. Civ. P.
66 and Me. R. Crim. P. 42).

From 2001 to present, I have been assigned to the Criminal Division of the
United States Attorney’s Office in the District of Maine. I am responsible
for investigating and prosecuting federal crimes in the northern half of the
District of Maine. The United States Attorney in Maine has offices in
Bangor and Portland. I operate largely from the Bangor office which has
only six attorneys. Because we are a small office, we each manage our
own caseloads, which are, for the most part, very diverse. My own
caseload has included bank fraud, mortgage fraud, tax evasion, mail and
wire fraud, government program fraud, embezzlement from union ftmds,
bank robbery, Hobbs Act cases, firearms and explosives cases, postal
crimes, assaults on federal officials, harboring and transporting illegal
aliens, entry after deportation cases, fraudulent document cases, visa

13

439

fraud, aggravated identity theft, drug cases, cases involving the special
aircraft jurisdiction of the United States, cases involving the misconduct or
neglect of ships officers, and child pornography cases. My cases range
from complex white collar matters to prosecutions of petty offenses
occurring in Acadia National Park and the Veteran’s Administration
hospital.

Typically, cases are referred to me by a federal law enforcement agency -
the FBI, ATF, ICE, IRS, USPIS, or an OIG’s office from another agency.
Often, a state or local law enforcement agency is involved as well. I
supervise the investigation and direct the agents as needed. If a search
warrant or other investigatory tool requiring court approval is needed, I
present the matter to the United States Magistrate or the federal judge. As
the evidence is developed, I present the case to the grand jury. Once a
case is indicted, I handle the arraignment, preliminary examination and
detention hearings. I manage the discovery phase of the litigation and
respond to the various motions filed by defendants. If competency,
suppression, or other pretrial motions are raised, 1 craft the Government’s
response and argue the Government’s position at any motion or
evidentiary hearings. Like 97% of all federal criminal cases, the vast
majority of my cases result in a plea of guilty by the defendant, I typically
negotiate the plea and any cooperation agreement with defense counsel. If
the defendant does not plead guilty, I prepare and present the
Government’s case at trial. That process involves interviewing and
preparing lay and expen witnesses, gathering documents and other
physical evidence, preparing and responding to motions in limine,
preparing direct and cross-examination questions and exhibits, and
preparing opening and closing statements. Post conviction, I review
presentence investigation reports, prepare the Government’s case for
sentencing, make any additional evidentiary record required to achieve a
just sentence, and make the Government’s sentencing recommendation. I
handle all revocation of supervised release proceedings connected with my
cases. I also handle a wide variety of additional matters, such as fugitive
warrants and transfers to and from other districts.

ii. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.

From 1988 to 1990, when I worked at Williams and Connolly, the firm
was not divided into formal departments or practice groups. The primary
focus of the firm was litigation, but the cases varied widely. My clients on
the civil side included doctors and hospitals being sued for medical
malpractice and corporations and individuals involved in various types of
civil lawsuits, such as a plaintiff in a libel suit or a corporation being sued
for copyright infringement. On the criminal side, my clients were
corporations and individuals who were the targets of federal grand jury'

14

440

investigations or who had been charged with white collar crimes. During
the time I was with Williams and Connolly, I had one pro bono client, who
was involved in an administrative law issue.

From 1 990 to 1994, during my tenure as an Assistant United States
Attorney assigned to the Civil Division, my typical clients were federal
agencies. For instance, I represented the Department of Commerce, the
Department of the Army, and the United States Postal Service in personal
injury suits. I represented the Veterans Administration in medical
malpractice cases. I represented the Farmers Home Administration and
the Department of the Interior in property matters. I represented the Food
and Drug Administration in affirmative litigation against a seafood
processor for violations of the Food, Drug and Cosmetic Act.

While I was working at the Maine Department of the Attorney General,
from 1 994 to 200 1 , 1 represented the State of Maine in appeals of serious
criminal convictions, in actions attacking the constitutionality of State
statutes, and in miscellaneous motions practice before State courts. In my
capacity as a volunteer with the Public Protection Unit, I represented
victims of hate or bias incidents under the Maine Civil Rights Act.,

As an Assistant United States Attorney assigned to the criminal division, I
represent the United States of America in criminal matters before the
United States District Court.

c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.

Virtually my entire career has been devoted to litigation. As an associate with
Williams and Connolly, I was in court occasionally. When I was an Assistant
United States Attorney assigned to the civil division from 1 990 to 1 994, 1
appeared in court regularly and was solely responsible for two non-jury civil
trials. When I was an Assistant Attorney General for Maine from 1 994 to 200 1 , 1
appeared regularly to argue the State’s case in various murder and misdemeanor
appeals, and I appeared on a wide variety of matters in various district and
superior courts in Maine. I also argued two habeas cases in the First Circuit Court
of Appeals. Since 2001, as an Assistant United States Attorney assigned to the
criminal division, the frequency of my court appearances has increased. I am
routinely in the United States District Court either before the United States
District Judges or the United States Magistrate. Although full blown trials are
infrequent, I appear frequently for various hearings and sentencings.

IS

441

i. Indicate the percentage of your practice in:

1. federal courts: 75%

2. state courts of record: 25%

3. other courts:

4. administrative agencies:

ii. Indicate the percentage of your practice in:

1. civil proceedings: 20%

2. criminal proceedings: 80%

d. State the number of cases in courts of record, including cases before
administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.

I have tried four criminal cases as sole counsel to verdict. I have tried two civil
cases as sole counsel to judgment. I have also tried numerous petty offenses
before the United States Magistrate to judgment.

i. What percentage of these trials were:

1. jury: 50%

2. non-jury: 50%

e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any
oral argument transcripts before the Supreme Court in connection with your
practice.

I have not appeared before the Supreme Court of the United States.

17. Litigation : Describe the ten (10) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give a capsule summary of
the substance of each case. Identify the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case:

a. the date of representation;

b. the name of the court and the name of the judge or judges before whom the case
was litigated; and

c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.

16

442

(1) United Stales v. Ferguson, Nos. 10-130-B-W & 10-156-B-W (D. Me. 2010).

Ferguson, a Greyhound bus driver, robbed a bank in Orono, Maine on July 13, 2010.
After a swift but intensive investigation, Ferguson was arrested and brought into
federal court. Ferguson was suspected of committing a series of bank robberies that
had taken place throughout the Northeast since April of 201 0. Ferguson was held on
our initial complaint and was indicted by a grand jury in August of 20 10. While he
was detained pending trial, 1 supervised and coordinated the efforts of the FBI and
about a dozen state and local law enforcement agencies in New Hampshire, Vermont,
Massachusetts, Rhode Island, Connecticut and New York. On October 4, 2010,
Ferguson pleaded guilty to the indictment charging the Maine bank robbery, and he
waived venue and indictment and pleaded guilty to an information charging him with
ten additional bank and credit union robberies, several of which were armed
robberies. As part of his plea agreement, Ferguson agreed not to seek a downward
departure of his sentence, and the United States reserved its right to seek an upward
departure from the United States Sentencing Guideline range. Ferguson was
sentenced to serve 121 months in prison.

a. The representation was from July 20 1 0 to February 2011.

b. The case was in the United States District Court for the District of Maine before
the Honorable John A. Woodcock.

c. I was the sole prosecutor assigned to the case.

Defense counsel:

Jon A. Haddow, Esq.

Farrell, Rosenblatt & Russell
61 Main Street, Suite 1
Bangor, ME 04401
(207) 990-3314

(2) United States v, Guiliani, No. 10-06-B-W (D. Me. 2010).

Guiliani came to the attention of United States Customs and Border Protection when
a number of illegal aliens were found working in a potato processing plant in Fort
Fairfield, Maine. The illegal aliens were prosecuted for having false documents, and
they agreed to cooperate against Guiliani, who owned the company that was engaged
in providing workers - many of whom were illegal - to American businesses. The
investigation broadened and agents from the Immigration and Customs Enforcement,
the Social Security Administration Office of the Inspector General, the Department of
Education Office of the Inspector General and the Internal Revenue Service came on
board. I coordinated the lengthy investigation which involved multiple search
warrants, surveillance, and the review of a large number of documents. Guiliani was
charged by indictment with harboring and transporting illegal aliens, social security

17

443

fraud, tax evasion, failure to file income tax returns, and fraud in connection with
student loan applications. Guiliani agreed to plead guilty to all charges and pay
restitution totaling over $230,000 to the Internal Revenue Service and the Department
of Education. Guiliani received a sentence of 1 9 months of imprisonment.

a. The representation was from 2004 to February 2011.

b. The case was in the United States District Court for the District of Maine before
the Honorable John A. Woodcock.

c. I was the sole prosecutor assigned to the case.

Defense counsel:

Bruce Merrill, Esq.

225 Commercial Street, Suite 501
Portland, ME 04101
(207) 775-3333

(3) United States v. Young, No. 09-140-B-W (D. Me. 2009)

United States v. Young, 2010 WL 146 1 558 (D. Me. Apr. 9, 201 0) (order on motion in
limine)

United Stales v. Young, 2010 WL 1461574 (D. Me. Apr. 9, 2010) (order on motion in
limine)

United States v. Young, 2010 WL 1418744 (D. Me. Apr. 7, 2010) (order on motion in
limine)

United States v. Young, 702 F. Supp 2d 1 1 (D. Me. Apr. 6, 2010) (order on motion in
limine)

United States v. Young, 2010 WL 1418746 (D. Me. Apr. 6, 2010) (order on motion in
limine)

United States v. Young, 20 1 0 WL 1418748 (D. Me. Apr. 6, 20 1 0) (order on motion in
limine)

United States v. Young, 694 F. Supp. 2d 25 (D. Me. Mar. 15, 2010) (order on motion
to dismiss)

United States v. Young, 2010 WL 347878 (D. Me. Jan. 25, 2010) (magistrate’s
recommended decision on motion to dismiss)

I prosecuted Young for the theft of Office of Personnel Management (OPM) benefits
from 1 997 to 2005 and for filing false tax returns for 2003, 2004 and 2005. Young
stole OPM survivor benefits which were intended for his deceased mother-in-law.
Because Young never reported the death of his mother-in-law to OPM, and because
OPM missed the woman’s death on cross-checks with the Social Security
Administration, the theft was not discovered until 2007. 1 supervised the
investigation by the Office of Inspector Genera! for OPM and the Internal Revenue
Service. After plea negotiations reached an impasse, I presented the case for

18

444

indictment. After extensive motions and briefing, the case went to jury trial. The
Defendant was found guilty and was sentenced to 33 months in prison.

a. The representation was from 2008 to February 2011.

b. The case was in the United States District Court for the District of Maine before
the Honorable John A. Woodcock.

c. 1 was the sole prosecutor assigned to the case.

Defense counsel:

Bruce Mallonee, Esq. (now a Maine District Court Judge)

163 State House Station
Augusta, ME 04333
(207) 287-6950

Charles F. Budd, Jr„ Esq.

Rudman & Winchell
84 Harlow Street
Bangor, ME 04401
(207) 947-4501

(4) United States v. Riley , No. 08-157-JAW (D. Me. 2010)

United States v. Wickett, No. 08-018-JAW (D. Me. 2009)

United States v. Carey , 716 F. Supp. 2d 56 (D. Me. 2010) (order finding prior cocaine
offense did not count as a conviction for purposes of Armed Career Criminal Act)
United Slates v. Wickett , 2010 WL 1500880 (D. Me. Apr. 13, 2010) (order denying
motion to reduce sentence)

United States v. Carey, 2009 WL 4851 12 (D. Me. Feb. 26, 2009) (order on motion in
limine)

United States v. Carey, 599 F. Supp.2d 50 (D. Me. 2009) (order denying motion to
dismiss indictment)

United States v. Carey, 578 F. Supp. 2d 190 (D. Me. 2008) (order on detention)

This case involved the straw purchase of firearms by Wickett, a young Maine woman
who was befriended by two Boston drug dealers, Riley and Damon. Riley, Damon
and an associate, Carey, all felons, came to Maine to purchase firearms. They
convinced Wickett to purchase the firearms for them, since they would not have
passed a background check. An astute firearms dealer called the police, and Wickett
was arrested. She later confessed to the police and agreed to plead guilty to making a
false statement in the acquisition of firearms. She received an 18 month sentence.
Riley, Damon and Carey were each charged with possession of a firearm by a felon
and a conspiracy to make false statements in the acquisition of firearms. Riley’s case
was transferred to Boston and combined with another possession of firearm charged
there. Riley received a sentence of 92 months in prison. Damon pleaded guilty to

19

445

being a felon in possession and was sentenced to 70 months. After extensive pre-trial
motions practice, including a motion to dismiss a superseding indictment, Carey
proceeded to trial and was found guilty of the felon in possession charge. Carey
received a sentence of 90 months in prison.

a. The representation was from 2007 to December 2010.

b. The case was in the United States District Court for the District of Maine before
the Honorable John A. Woodcock.

c. I was the sole prosecutor assigned to the case.

Defense Counsel for Riley:

Jeffrey M. Silverstein, Esq.

Law Office of Jeffrey M. Silverstein, PA
9 Central Street, Suite 209
Bangor, ME 04401
(207) 992-9158

Defense Counsel for Damon:

Virginia G. Villa, Esq.

Federal Defender’s Office
Key Plaza, 2" J Floor, Suite 206
23 Water Street
Bangor, ME 04401
(207) 992-4111

Defense Counsel for Carey:

Leonard I. Sharon, Esq.

Law Office of Leonard Sharon
223 Main Street
Auburn, ME 04210
(207)344-6311

Defense Counsel for Wickett:

Richard L. Hartley, Esq.

Law Office of Richard Hartley
1 5 Columbia Street, Suite 30 1
Bangor, ME 04401
(207) 941-0999

(5) United States v. Escalante, CR-07-45-B-W & CR-07-67-B-W (2007)

United Stales v. Centeno- Perez, CR-07-65-B-W (2007-201 0)

The husband and wife team of Escalante and Centeno-Perez operated a labor contracting
business which supplied workers, many of whom were illegal aliens, to various

20

446

employers in eastern Maine. The defendants were responsible for employing a large
portion of the illegal migrant workforce present in Washington County, Maine, In
addition to their labor contracting business, they owned a Mexican Store and Restaurant.
Although both Escalante and Centeno-Perez had work authorization papers from the
Immigration and Naturalization Service, their documents had been procured through
fraudulent asylum claims. I worked the investigation with special agents from
Immigration and Customs Enforcement (ICE). There were numerous witnesses who
were unauthorized workers employed by Escalante and Centeno-Perez who were also
prosecuted. We obtained a search warrant for the defendants’ residence and found
critical evidence of their scheme to harbor, transport and employ illegal workers.

Escalante was charged first by complaint with visa fraud and aggravated identity theft.
She agreed to cooperate and plead guilty both to the visa fraud charged in the indictment
and to an information charging her with a conspiracy to employ illegal aliens. With
Escalante’s cooperation, we were able to charge Centcno-Pcrcz with conspiracy to
employ illegal aliens, transporting and harboring illegal aliens, and visa fraud. Centeno-
Perez fled the country but surfaced about a year later in Canada. Working with the
Office of International Affairs, I filed a request for provisional arrest with the Canadian
government and then filed for extradition. About a year after the extradition was filed,
Centeno-Perez was turned over to ICE agents and appeared to answer the charges in
Maine. After discovery and motions practice, Centeno-Perez pleaded guilty and was
sentenced to 33 months of imprisonment. After he serves his prison sentence, Centeno-
Perez will return to ICE custody for removal proceedings.

a. The representation was from 2006 to 20 1 0.

b. The case was in the United States District Court for the District of Maine before the
Honorable John A. Woodcock.

c. I was the sole prosecutor assigned to the case.

Defense Counsel for Escalante:

Jon A. Haddow, Esq.

Farrell, Rosenblatt & Russell
61 Main Street, Suite 1
Bangor, ME 04401
(207) 990-3314

Defense Counsel for Centeno-Perez:

Ronald W. Bourget, Esq.

Bourget & Bourget, P.A.

64 State Street
Augusta, ME 04330
(207) 623-3731

21

447

(6) United States v. Winchenbach , No.-03-0097-JAW-l (D, Me. 2003)

Winchenbach was the quality assurance manager for Jordan’s Meats, a meat processing
facility with plants in Augusta and Portland, Maine. Jordan’s Meats had its own USDA
accredited laboratory to ensure that its products met quality standards set by the USDA
regulations. We received information from an insider at Jordan’s Meats that lab results
for hot dogs were being falsified resulting in a product with more fat and water than
allowed by law. I supervised the investigation which was conducted by agents from the
USDA Office of the Inspector General. Ultimately, Winchenbach agreed to waive
indictment and plead guilty to a felony count of obstructing a proceeding before the Food
Safety Inspection Service of the USDA. Based on information provided by Winchenbach
and others, an Assistant United States Attorney from the civil division was able to
negotiate a $100,000+ settlement with Jordan’s Meats. I received an award of excellence
from USDA for my work in connection with this case.

a. The representation was from 2003 to 2004.

b. The case was in the United States District Court for the District of Maine before the
Honorable John A. Woodcock.

c. I was the sole prosecutor assigned to the case.

Defense Counsel:

Thomas E. Dwyer, Jr., Esq.

Dwyer & Collora
600 Atlantic Avenue
12 ,h Eloor, Federal Reserve Plaza
Boston, MA 02210
(617)371-1000

(7) United States v. Sanford & Pelotte, No. 03-53-JA W-2 (2003-04)

United States v. Sanford, 327 F. Supp. 2d 54 (D. Me. 2004)

United States v. Sanford, 301 F. Supp. 2d 36 (D. Me. 2004)

This case involved the theft of a .45 caliber handgun from a blind man and an armed
robbery of a supermarket pharmacy in Skowhegan, Maine. We charged the defendants
with a Hobbs Act robbery conspiracy, using a firearm during the commission of a federal
crime of violence, possession of a stolen firearm, possession of a firearm by an armed
career criminal, and possession of a controlled substance with intent to distribute
(oxycodone). Pelotte agreed to plead guilty and cooperate. He was sentenced to 13 years
in prison. Sanford filed motions to sever and suppress. After briefing and hearing, the
Government won both motions. On the eve of trial, Sanford changed his plea to guilty
and was sentenced to 20 years imprisonment.

22

448

a. The representation was from 2003 to 2004.

b. The case was in the United States District Court for the District of Maine before the
Honorable John A. Woodcock.

c. I was the sole prosecutor assigned to the case.

Defense Counsel for Pelotte:

Wayne R. Foote, Esq.

Law Office of Wayne R. Foote
344 Mt. Hope Avenue
Bangor, ME 0440 1
(207) 990-5855

Defense Counsel for Sanford:

Stephen C. Smith, Esq.

Smith Law Offices
9 Central Street, Suite 209
Bangor, ME 04401
(207) 941-2395

(8) State v. Hague, 726 A.2d 205 (Me. 1999)

Haque appealed his convictions of the murder of his girlfriend and an assault with a
dangerous weapon on her neighbor who attempted to stop the killing. On behalf of the
State, I briefed and argued the appeal before the Maine Supreme Judicial Court sitting as
the Law Court. The Law Court agreed with the State’s argument that the lower court
properly excluded the testimony that Haque was in a blind rage because it was an opinion
which stated a legal conclusion beyond the specialized knowledge of the expert. The
Law Court also agreed that the cultural anthropologist’s testimony was not relevant to
any state of mind defense, particularly where the defendant had disavowed any reliance
on a cultural defense and where the defendant had not introduced evidence sufficient to
generate the defense of adequate provocation. Finally, the Law Court agreed with the
State that the out of court statements of the victim were not offered for the truth of the
matter asserted and were thus admissible. My work on this case involved the preparation
of the State’s brief and argument before the Law Court.

a. The representation was in 1 999.

b. The appeal was heard by Chief Justice Wathen, and Justices Clifford, Rudman,
Dana, Saufley and Calkins.

c. I was the sole attorney representing the State on appeal.

23

449

Appellate Counsel:

William Maselli, Esq.

98 Washington Avenue
Portland, ME 04101
(207) 780-8400

(9) Stale v. King, 708 A.3d 1 0 1 4 (Me. 1 998)

State v. Jackson , 697 A.2d 1328 (Me. 1997)

State v. Moore, 697 A.2d 1328 (Me. 1997)

King and Jackson were convicted of manslaughter and Moore was convicted of the
murder of a crack cocaine dealer, in Lewiston, Maine. The appellants raised numerous
issues including whether one defendant’s Fifth Amendment right to remain silent was
violated during a custodial interview; whether there was error in the accomplice liability
instruction; whether there was a violation of the sequestration order; whether evidence of
an earlier plan to rob a crack cocaine dealer was admissible under Me. R. Evid. 404(b);
whether evidence that the prosecution witness had told police that he thought the
defendant was innocent was improperly excluded; whether there was sufficient evidence
of identity and whether the trial courts properly sentenced the defendants. On behalf of
the State, I briefed and argued the appeals before the Maine Supreme Judicial Court
sitting as the Law Court. The Court affirmed all of the convictions.

a. The representation was from 1997 to 1998.

b. The King appeal was heard by Chief Justice Wathen and Justices Roberts,
Clifford, Rudman, Dana and Lipez.

The Jackson and Moore appeals were heard by Chief Justice Wathen and Justices
Roberts, Glassman, Rudman and Lipez.

c. I was the sole attorney representing the State on appeal.

Principal Counsel for King:

Leonard I. Sharon, Esq.

223 Main Street
Aubum, ME 04212
(207)344-6311

Counsel for Jackson:

David L. Brandt, Esq.

903 Roosevelt Trail
Windham, ME 04062
(207) 892-3236

24

450

Counsel for Moore:

Stuart W, Tisdale, Jr., Esq.

80 Exchange Street
Portland, ME 04112
(207) 879-9177

(10) State v. Craney & Eastman, 662 A.3d 899 (Me. 1995)

Craney and Eastman were convicted of the robbery and murder of an elderly auctioneer.
On appeal they argued that the trial court erred by admitting Craney’s redacted
confession and that the prosecutor’s closing argument deprived them of a fair trial. The
State contended that the replacement of Eastman’s name with a neutral pronoun in
Craney’s confession followed the rules set forth in Richardson v. Marsh, 481 U.S. 200
(1987) and did not run afoul of Brutonv. United States, 391 U.S, 123, 126(1968).
Furthermore, the State contended that the redaction did not so distort the confession so as
to violate the rule of completeness under Me. R. Evid. 105. The Law Court agreed with
the State’s analysis on the Bruton issue, found any error in the prosecutor’s closing to be
harmless and upheld the convictions. I researched and wrote the brief and presented oral
argument.

a. The representation was in 1995.

b. The appeals were heard by Chief Justice Wathen and Justices Roberts, Glassman,
Clifford, Rudman, Dana and Lipez.

c. 1 was the sole attorney representing the State on appeal. With me on the State’s
Brief were the two reviewing attorneys - Assistant Attorneys General Charles K.
Leadbetter and Wayne S. Moss.

Counsel for Defendant Craney:

David L. Brandt, Esq.

903 Roosevelt Trail
Windham, ME 04062
(207) 892-3236

Counsel for Defendant Eastman:

William B. Cote, Esq.

Laskoff & Associates
P.O. Box 7206
Lewiston, ME 04243
(207) 786-3173

18. Legal Activities : Describe the most significant legal activities you have pursued,

including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organization(s) for whom you performed lobbying activities and describe

25

451

the lobbying activities you performed on behalf of such e!ient(s) or organizations(s).
(Note: As to any facts requested in this question, please omit any information protected
by the attorney-client privilege.)

Much of the work of a federal prosecutor occurs before a case is ever charged and
becomes public. In a small office such as mine, where resources are limited, a federal
prosecutor plays a major role in investigating cases. We decide which investigatory steps
to take, issue subpoenas, review and analyze documents, interview witnesses and present
the case to the grand jury. Particularly in a white collar investigation, investigation
activities and grand jury presentations can take months. Once the evidence has been
gathered and analyzed, I bear the responsibility of recommending who to charge and
what to charge. Occasionally, after investigation, I have made the decision not to charge
the case or to refer it to the State for prosecution. The investigatory work and charging
decisions are every bit as important as the work of preparing for a trial or trying a case.
Ultimately, the primary responsibility of any federal prosecutor is not to win a conviction
but to see that justice is done.

1 9. Teaching : What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.

I have not taught any courses.

20. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest.

Aside from a federal retirement under FERS, 1 have no deferred income/firture benefits.

21. Outside Commitments During Court Service : Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.

I do not have any plans to pursue outside employment during my service with the court.

22. Sources of Income : List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding $500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1978, may be substituted here).

See attached Financial Disclosure Report.

26

452

23. Statement of Net Worth : Please complete the attached financial net worth statement in
detail (add schedules as called for).

See attached Net Worth Statement.

24. Potential Conflicts of Interest :

a. Identify the family members or other persons, parties, categories of litigation, and
financial arrangements that are likely to present potential conflicts-of-interest
when you first assume the position to which you have been nominated. Explain
how you would address any such conflict if it were to arise.

If confirmed, I would recuse myself from any matter in which a party is
represented by McCloskey, Mina & Cunniff, LLC, where my husband is a
partner.

At present, my husband and I own stock in a number of public companies. If
confirmed, I will follow the guidance of the Administrative Office of U.S. Courts
and of the District Court in undertaking any appropriate reinvestment into
diversified funds. If I continue to own any individual stocks, I would recuse
myself from any cases in which I have investments.

b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.

If confirmed, 1 would handle all matters involving potential conflicts of interest
through careful adherence to the Code of Conduct for United States Judges as
well as other relevant Canons and statutory provisions. I would seek to avoid not
only actual conflicts of interest, but any appearance of conflict.

25. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar
Association’s Code of Professional Responsibility calls for “every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving the disadvantaged.” Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.

When I was an associate with Williams and Connolly, I handled a pro bono matter
involving the restoration of a pharmaceutical license which had been revoked by the
District of Columbia, I would estimate that 1 devoted 60 hours over the course of about
six months to that matter.

During my tenure with the Maine Office of the Attorney Genera], I volunteered on the
Civil Rights Task Force. This was a team of lawyers who were available to respond on
short notice to seek temporary protection orders and then permanent injunctions for
victims of hate or bias incidents under the provisions of the Maine Civil Rights Act. In

27

453

the time that I participated, I sought and received protection orders for a group of pro-life
picketers who had been threatened while exercising their First Amendment rights, and a
black man who was assaulted and threatened. I also handled a matter involving a gay
teenager who had been assaulted and harassed. This type of work required immediate
attention. I would assess the facts of the situation, move for a temporary protection order,
and then either resolve at hearing or by consent decree the issue of the permanent
injunction. 1 would estimate that I devoted approximately twenty hours for each of the
civil rights matters I handled.

During my employment as an Assistant United States Attorney, I have not engaged in
any pro bono legal practice. I have continued to volunteer for my community, however.

I volunteered with the Bangor Area Homeless Shelter to provide monthly meals to feed
thirty people on many occasions. I have raised funds for a new playground for a local
school. I spearheaded the planting of the Margaret Chase Smith Federal Building pink
tulip garden which raised funds for the Maine Cancer Society. And I have worked on
fundraising projects with the Mabel Wadsworth Women’s Health Center, which provides
health care services to all women regardless of their ability to pay.

26. Selection Process :

a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
the interviews in which you participated). Is there a selection commission in your
jurisdiction to recommend candidates for nomination to the federal courts? If so,
please include that process in your description, as well as whether the commission
recommended your nomination. List the dates of all interviews or
communications you had with the White House staff or the Justice Department
regarding this nomination. Do not include any contacts with Federal Bureau of
Investigation personnel concerning your nomination.

On March 5, 2010, Representatives Chellie Pingree and Michael Michaud
announced the formation of a screening panel comprised of ten prominent Maine
attorneys to help Representatives Pingree and Michaud make a recommendation
to President Obama on the appointment of the next U.S. District Court Judge.

On March 1 1, 2010, 1 submitted my application materials. On March 26, 2010, 1
had an interview with the screening panel. I was told by Representative
Michaud’s office that my name was one of three or four that were recommended
by the screening panel. On November 30, 201 0, 1 learned from Representative
Michaud's office that my name was being submitted to the White House for the
judgeship. Since December 1 , 20 1 0, 1 have been in contact with pre-nomination
officials at the Department of Justice. On January 14, 2011, 1 interviewed with
attorneys from the White House Counsel’s Office and the Department of Justice
in Washington, D.C. On March 2, 201 1 , the President submitted my nomination
to the Senate.

28

454

b. Has anyone involved in the process of selecting you as a judicial nominee

discussed with you any currently pending or specific case, legal issue or question
in a manner that could reasonably be interpreted as seeking any express or
implied assurances concerning your position on such case, issue, or question? If
so, explain fully.

No.

29

455

ADlQ

Rev. mow

FINANCIAL DISCLOSURE REPORT
NOMINATION FILING

Repay) Require*/ by /be Ethiat
in Government Ad of 1978
{5 US.Capp,S!HOl- III)

1. PcfHjn Reporting (Iasi name. first, middle initial)

Torre sen, Nancy

2. Court or OrgcHiiAlton

United States District Conn - Maine

J. Dale of Report

03/02/20! }

A. Title {Article HI judges indicate active or senior ftana;
nwgiiiroW judges ietlicnie full- or pit wine)

United Stales Disirict Coun Judge

Sa. Repart Type (cheek Appropriate type)

[/] Nominal ion, Dale 03/02/2011

j | Initial | [ Annual | | Finel

t. Reporting Period

05/QJ/2050

01/01/201 1

5b. I | Amended Report

7. Chambers or Office Addrctt

United Slates Attorney's Office

302 Harlow Street

Suite IN

Rtmgor, Maine 04405

8, On tfcebuii of the Information eonfitlntd In title Report A ltd nny
mad in to! lent perish) tni; therein, it l». In my opinion, in eoinpllnncc
with applicable Uwi and rtgulnrtani.

Reviewing OfFtecr Dole

IMPORTANT NOTES; The liistrncthnz accompanying ihh form must Ar followed. Complete nil pjtrfo,
checking the NONE (tax for each part where yen have no reportable information. Sign on lust page.

T. POSITIONS. (Reporl/nf; ImtMdual unli'! tec pp. 9-11 of flll/lg instruefhun)
|/1 NONE (No rtiporlable positions.)

POSITION

II, AGREEMENTS , {Reporting Mhidunt onty; ttt pp. li lt o/JUIng Inttructloni.)
f/1 NONE (No reportable agreements.)

PATS

456

FINANCIAL disclosure Report

Nshit sf Pw«n Rt porting

Dole of Report

Page 2 of 7

Torracn, Nnncy

03/02/2011

III. NON. INVESTMENT INCOME . (Hearting Individual and spans*; see pp. 11-2-4 of filing InstraclUms.)

A, Filer's Non-Investment Income

[/] NONE (No reportable non-investment income,)

mm

INCOME

(yaurs, noi spouse's)

B» Spouse's Non-Investment tlieuine - If you s>vre married during any /tertian of !ht reporting pear, complete this sec/hn.
(Do! hr ammatl ji at required except for hanorvrb.)

| | NONE (No reportable non-investment income.)

DATE

SOURCE AND TYPE

1.2010

MeClojkey, Mins & Curmiff • partnership interne

2. 201 1

McCloskcy, Mina 4 Cimniff - partnership income

IV. REIMBURSEMENTS - transportation, lodging, food, etiterioltnOenr.

(tncUntrs those to spouse and liepmtku) children; set pp. }$•} 7 of filing Instncllont.)

1 *| NONE (No reportable reimbursements.)

SOURCE DATES LOCATION PURPOSE ITEMS PAID OR PROVIDED

I. Exemp!

457

FINANCIAL DISCLOSURE REPORT

Name of Pcr»o* flrpcrttOE

" OMititttepsti" —

Page 3 of 7

Tormta, Nancy

01/02/20 J 1

V. GIFTS • fitx-hidtt /host lo spctae and dc/icndert/ children; tee pp. 1S-JI of filing laifracltotu.)

\ | NONE (No reportable gifts.)

VI. LIABILITIES . (Includes those qJ ipputc mid drpriideni children; see pp. JJ-13 of filing InUrncfinniJ
| / | NONE (No reportable /labilities.)

458

FINANCIAL DISCLOSURE REPORT

Nnrat af Perron Reporting - 1 •• \-r -• •• -

Date of Hcport

Page 4 of 7

Torreicn, Nancy

034)2/205 1

VII, INVESTMENTS and TRUSTS -/ires*#*, W/»e, mn/uac-rtjm (htehtSa iliott ofsj>onst and ihpeniltiifcJilldren; ica pp. 14-60 of firing hnirmlbni.)
f j NONE {No reportable income, assets, or transactions.)

A.

-

0.

C.

D.

— _ -

i

Dei crip! ton of Audi

Income dating j

Gross veluc el end

Trnn jwtions during reporting period l

/including trust niscti)

j reporting period |

of reporting period

0)

<2>

(0

(2>

(')

(2)

m

(4)

(5)

Place "(XT' oflcrtach asset

[Are aunt

Type Ic.g.,

Value

Value

Type (e g.

Dale

Value

Gain

Identity of

exempt fmtnprior diiclastire

! Code 1

di v„ rent,

Code 2

Method

buy. icll.

ipmlddiyy i

Code 2 :

Code 1

buyerAeltcr

urine)

(If)

Code 3

redemption)

(i-T) j

(A-H)

(if private

,

.

(Q-wj

: i

tnwjaclion)

1. TD Bunk Accounts

Cl

Intcresl

L

T

1WWC

B

| ]

B

T

3. Key Bank Account

B

| |

■

T

4. McCloskey. Mina & CurwtifT Law Finn
Copiml Fund

A

u

B

B

B

■

■

S. Vanguard SOO Index Mutual Fund

D

Dividend

K

T

■

fl

<S. IRA »l

■

■

7. - Vanguard Health Core Fund

A

Dividend

K

T

■

HKHB

B

Dividend

J

T

■

■

9. IRA #2

10. - Vanguard Wellington Fund

B

Dividend

B

T

II. Brokerage Accouw

12. - Fidelity Money Market Account

A

Inlcrcsl

J

T

13. • Bonk of America Stock

B

Dividend

J

T

14. - Microsoft Slock

A

Dividend

)

T

15. -Pfizer Slock

B

J

T

56. - Powers hard Exchange 5toek

A

Dividend

BE

T

1 7. - Verizon Comm. Stock

A

Dividend

J

T

■

t. Income Gate C&rfrr
(Src rofteruii ft I njnJ 1W)
I.V»l«oOs*»
fScv Cohaiwi C! Mid D3J

' Vokit Mtlbml Coder
(Sc Column Cl)

A'll.OOOarku
r-$jo.«i| -tutu non
i-llS^nioflNi
N -iliom ■ WOfl.OIM
rj • iJfl.3M.000

Q.-Appl»)rol
U -Book Value

B-U.rxn-JJ.Wrt
□ •tipn.ooi •siMaiMw
K “il$O0l -
o-smom •si.ooo.cort

ft <ai (Real Fuse Only)
V-Oihcr

C»W.SOI-SSJM
til>si.nMi.0Ai . js.ouooon
L-lS0.Mll -SIM^OO
PI -OUBAOOl .13^00,000
P4 -Molt *M $50,000,000
S-AiKKiatnl
IV -En imalei

ii -JJ.nei • ii j.ooo
112 -Mwe CiwJt.'FW.ono

M»$IC*J)0I - (350,000
P2 »U.0M,WU .'S2MKW.0M

e-Jis.ooi - jiit.iHM i

T-Carli M.rVct

459

VII. INVESTMENTS and TRUSTS — In came, value, ftmwtrfnn i fluclinhi those of spouse amt depeudein tltl/drrn; ire p/K 34-6 0 of filing htlniclteiu.)
| | NONE (No reportable income, assets, or transactions.)

Dcactipllun of Ass*Us
(including Iru* asjcu)

Place *(X)* after each a»«ci
cncmpi frooi prior duclonirs

Income during Gross value ai end Trnnsaetions dc ring repo ng period

rtporiinB period of reporting period

_ (ij' T' a) m nr m-TWT iST" "

Amount Type (c-c-, Value Vahie Typ«(e.g, Dmc Value Gain Identity of

Code t dtv,. rent. Code 2 Method boy, pell, mm/ddfyy Code 2 Code I htiyei/scUer

( A -*0 or im.) <J-P) Code 3 re Jem pi ion) (J-P) (A-H) (tfprivaie

(Q-W) trsnsaelfon)

18. - American ihiroPncific Growth Mutual A Dividend K

Fund

19. - American New Pcrcpeciive CIosj A Mutut a Dividend J

Fund

20. - Hanford Mid Cap Class A Mumol fund

21, - Franklin High Income Mutual Fund

22. - Franklin Income Class A Mutual fund

23. - Hartford Floating Rate Mutual Fund

24. - Templcinn Global Bond Class A Mutual
Fund

25. AT&T Stock

26. Undeveloped Lot -Waldo County, Maine

27. Undeveloped Lot - Hancock County, Maine

28. Government Bonds Series RF. and I

t. Income Gam Code v
{See Columni Dt and DJI
1 V.lutCodf*

(See Column* Cl totlGJ)

A *41.000 nr krt
P-JSOkODt -$IUA00
J -$15,000 «r leu
N -J130.00I • DMjMM
M -$25,000001 • 11OD0O00O
Q-Apprulol
U-Bool Value

B “it. 00 1- $2400

o-juxi. 001 -$ij»o,oca

E-$tJ.0fll . 510*00
o-jsoaeai -sijoojw

C “52,101 . 55.000
til <*$1.000001 ■ $5,009,000
t, -150001 -$100,0*1
Pi -St.oOo.ooi - is.noo.noo
PI -Mcvr (turn $50,000 ADO

S -AittttmtN
5V -P.Kimaltl)

0 “55.001 • 515,000
112 -More than $5,000,000
M *5t«t,001 - 5250.000
PJ “55.000 (10 1 , J2S.OOO, 000

460

FINANCIAL DTSCLOSIJRE RETORT

Name of Perron Repairing

T'Datr of Report

Page 6 of 7

Torvcien, Nancy

03/02/20 1 1

VIII. ADDITIONAL INFORMATION OR EXPLANATIONS . (Jniflcale pan oj Report.)

pan vn,

X 26 - Undeveloped Lot, WokJo Couniy, Maine - Purchased in January of 2C05 for 3290,000.
X 27 - Undeveloped Lot, Hancock County, Maine - Purchased April Df2005 forS75.00D,

FINANCIAL DISCLOSURE REPORT

Name of Perron Reparsing ...

-

Dale of Repair

Page 7 of 7

Toinsen, Nancy

03/02/20 it

IX. CERTIFICATION.

I certify that all Information given above (including information pertaining to my spouse and minor or dependent children. Ifnny) Is
accurate, true, nml complete to the best of nr knowledge nnd belief, and that any Information not reported was withheld because It met applicable statutory
provision! permitting non-tlUelojnre. '

I further certify that earned Income from outside employment and banornrlti and the acceptance of girts which have been reported are In
compliance with the provisions of 5 U.S.C. *pp. § SO! el. st^., 5 U.S.C. 8 7353, and Judicial Conference regulations.

NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY DE SUBJECT TO CIVIL
AND CRIMINAL SANCTIONS (S U.S.C. npp. § 1M)

FILING INSTRUCTIONS

Mail signed original and 3 additional copies to:

Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301

One Columbus Circle, N.E.

Washington, D.C. 20544

461

FINANCIAL STATEMENT
NET WORTH

Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank
accounts, real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts,
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate members of your
household.

Cash on hand and in banks

93

000

U.S. Government securities— see schedule

20

000

Listed securities - see schedule

266

952

Unlisted securities

Accounts and notes receivable:

Due from relatives and friends

LIABILITIES

93 000 Notes payable to banks-sccurcd

20 000 Notes payable to banks-unsccured

;66 952 Notes payable to relatives

Notes payable to others
Accounts and bills due

Unpaid income tax

462

FINANCIAL STATEMENT
NET WORTH SCHEDULES

U.S. Government Securities

Series EE Bonds

$ 3,250

Series I Bonds

16,750

Total U.S. Government Securities

$ 20,000

Listed Securities

American Europacific Growth Fund

$19,990

American New Perspectives

14,737

AT&T stock

28,514

Bank of America stock

4,047

Franklin High Income Class A

16,659

Franklin Income Class A

1 1,951

Hartford Floating Rate Fund Class A

19,393

Hartford Mid Cap Class A Fund

16,359

Microsoft Corp. stock

10,639

Pfizer, Inc. stock

9,874

Powershares Financial Preferred (PGF)

9,997

Templeton Global Bond Class A

15,820

Vanguard Health Care Fund

21,783

Vanguard International Growth Fund

11,480

Vanguard 500 Index Mutual Fund

1 8,696

Vanguard Wellington Fund

24,557

Verizon Communications

12,456

Total Listed Securities

$266,952

Real Estate Owned

Personal residence

$450,000

Undeveloped lot fl\

400,000

Undeveloped lot #2

50,000

Jointly-owned residential home

50,000

One-week vacation time share

6,240

Total Real Estate Owned

$956,240

463

AFFIDAVIT

I, Nancy Torresen

that the information provided in this statement is,
of my knowledge, true and accurate.

do swear
to the best

3/t /loll

(DATE)

(NAME)

464

Senator COONS. Thank you, Ms. Torresen.

Ms. Brown.

STATEMENT OF NANNETTE JOLIVETTE BROWN, NOMINEE TO

BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOU-
ISIANA

Ms. J olivette Brown. Thank you, Senator Coons. I also want
to thank you and Senator Grassley for holding this hearing and
providing us an opportunity to provide testimony. I want to thank
the President of the United States for making this nomination. I
need to thank Senator Landrieu for her recommendation to the
President, and I am greatly thankful to Senator Vitter for sup-
porting my nomination.

I have here with me today my husband, Marcus Brown; my two
children, Christopher and Rachel. Looking at us from home are my
siblings, Carolyn, James, Charles, and Dwight. So I just want to
introduce you to them, and also thank who I know is watching,
many people at city hall and New Orleans who have embraced me
and embraced this moment with me.

So with that being said, Senator, I thank you again for holding
this hearing, and I have no further opening statement.

[The biographical information of Ms. Jolivette Brown follows:]

465

UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY

QUESTIONNAIRE FOR JUDICIAL NOMINEES

PUBLIC

1 . Name : State full name (include any former names used).

Nannette Jolivette Brown; Nannette V. Jolivette

2. Position : State the position for which you have been nominated.

United States District Judge for the Eastern District of Louisiana

3. Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.

Law Department
City of New Orleans
1 300 Perdido Street
Suite 5E03

New Orleans, Louisiana 701 12

4. Birthplace : State year and place of birth.

1963; Lafayette, Louisiana

5. Education : List in reverse chronological order each college, law school, or any other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.

1992 - 1998, Tulane Law School; LL.M. in Energy and Environment, 1 998
1985 - 1988, Tulane Law School; J.D., 1988

1981 - 1985, University of Southwestern Louisiana (now known as University of
Louisiana at Lafayette); B.A., 1985

Oth er

2008, Harvard Law School, Program on Negotiation

2006, Loyola Law School Mediation Training

1991, Harvard Law School Summer Institute for Lawyers

6. Employment Record : List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation

466

from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.

May 20 1 0 - presen t

City of New Orleans / Mayor Mitchell J. Landrieu
1300 Perdido Street, Suite 5E03
New Orleans, Louisiana 70112
City Attorney

2004-2010
Chaffe McCall, L.L.P.

1 100 Poydras Street, Suite 2300
New Orleans, Louisiana 70163

Special Partner (I worked on a contract basis from 2007 through 2009 while at Loyola)
2007 - 2009

Loyola University New Orleans College of Law
7214 St. Charles Avenue
Box 901

New Orleans, Louisiana 70118
Visiting Assistant Clinical Professor of Law

2003 - 2004

Hoffman, Siegel, Seydel, Bienvenu and Centola, L.L.P.

650 Poydras Street, Suite 2100
New Orleans, Louisiana 70130
Special Counsel

2000 - 2003

Milling Benson Woodward, LLP
909 Poydras Street, Suite 2300
New Orelans, Louisiana 70112
Special Counsel (2000 - 2002)

Equity Partner (2003)

1998-2000

Southern University Law Center
2 Roosevelt Steptoe Drive
Baton Rouge, Louisiana 70813
Assistant Professor of Law

1996-1998

Onebane Law Firm

1200 Camellia Boulevard, #300

Lafayette, Louisiana 70502

Associate

2

467

1994- 1996

City of New Orleans - Department of Sanitation
City Hall

1300 Perdido Street

New Orleans, Louisiana 701 12

Director

1994

Christovich and Kearney, LLP
601 Poydras Street
Suite 2300

New Orleans, Louisiana 70130
Associate; Special Counsel

1992-1994

Tulanc Law School

6329 Freret Street

New Orleans, Louisiana 70118

Teaching Fellow

1988- 1992

Adams & Reese, LLP

One Shell Square

701 Poydras Street, Suite 4500

New Orleans, Louisiana 70130

Associate

Fall 1987

Honorable Veronica DiCarlo Wicker (deceased)

United States District Court for the Eastern District of Louisiana

500 Poydras Street

New Orleans, Louisiana 701 12

Legal Extern (unpaid)

Summer 1987

Camp Carmouche Law Firm (uo longer in business)

650 Poydras Street

New Orleans, Louisiana 70130

Law Clerk

Summer 1986

Law Offices of Ammon Milter
700 Commerce Street, Suite 312
New Orleans, Louisiana 70130
Law Clerk

3

468

Summer 1986

Law Office of Dennis and Sadler (no longer in business)

Third Street
Lafayette, Louisiana
Law Clerk

Other Affilia ti ons (Uncompensated')

2001 — present

Federal Bar Association, New Orleans Chapter

Attorney Conference Center

500 Poydras Street, Room 364

Flale Boggs Federal Building

New Orleans, Louisiana 70130

Board of Directors

2003 - 2007

Jack and Jill of America, New Orleans Chapter
P.O. Box 850365
New Orleans, Louisiana 70185
Executive Board Member

1994

HUME Child Development Agency (a United Way agency)

3 1 9 North Tonti Street
New Orleans, Louisiana 70119
Board of Directors

1990- 1993

Association for Women Attorneys
P. O. Box 52076
New Orleans, Louisiana 70152
President (1991 - 1992)

Board Member (1990- 1993)

7. Military Service and Draft Status : Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.

I have never served in the U.S. Military. I have not registered for selective service.

8. Honors and Awards : List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.

4

469

Professional

Certificate for work with Department of Environmental Quality on surveillance
operation, 201 1

New Orleans Magazine, People to Watch, 2010

National Federal Bar Association’s President’s Award for New Orleans’ Bar Association
program on Powell v. Alabama, 2008 (Chair of Powell v, Alabama Committee,
which developed program and moderated event)

Coached team of Loyola Law students to win ABA Regional Mediation Advocacy
Competition, 2006

Award for Outstanding Publication of Advocate, National Federal Bar Association, 2004
Louisiana Bar Foundation Fellow, 2002

Tulane Law School Distinguished Minority Graduate Award, 2001 - 2002
Association for Women Attorneys Lifetime Membership Award, 1997
Louisiana Jaycee’s Outstanding Young Women (Recognized for Accomplishments in
Protecting and Preserving the Environment), 1995
Honoree, Mayor’s Council on Women, 1995

New Orleans Magazine 50 People to Watch (Recognized for establishing New Orleans’
First Curbside Recycling Program), 1995
Black Achiever in Business Award, Dryades YMCA, 1994

Academ ic

Tulane Law School, Environmental Law Fellowship, 1992
Tulane Law School’s Dean’s Honor Scholarship Award
Earl Warren Scholarship Award

University of Southwestern Louisiana, Vermilion Honor Society
University of Southwestern Louisiana, Blue Key Honor Society
Alpha Kappa Alpha Sorority Scholarship Award
Member USL Honors Program Curriculum
First Recipient of the Dr. James Oliver Scholarship Award
USL Most Outstanding Graduating Senior Award, 1985

9. Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.

American Bar Association

Litigation Section, Environmental ( 1 988 - present)

American Inns of Court (Barrister) (Acadiana) (1996 - 1998)

Association for Women Attorneys
President (1991 — 1 992)

Board Member (1990 - 1 993)

Federal Bar Association, New Orleans Chapter (1988 - present)

Board of Directors (2001 - present)

Editor, Advocate (2003 - 2004)

Chair, Mediation Advocacy Seminar Committee (2009, 2010)

5

470

Fifth Circuit Court of Appeal Bar Association (2002)

Institute for Energy Law of the Center for American and International Law
Advisory Board Member (2002 - 2003)

Louis A. Martinet Society (1988 - present)

Louisiana Attorney Disciplinary Board (2004 — 2010)

Hearing Committee Member (2004 - 2005)

Chair, Hearing Committee (2006 - 201 0)

Louisiana State Bar Association (1988 - present)

House of Delegates (2000 - 2004)

Minority Involvement Section ( 1 988 - present)

Environmental Law Section (1995 - 2005)

Alternative Dispute Resolution Committee (2007 - 2009)

Quality of Life Committee Appointment (2007 - present)

Maritime Law Association, Associate Member (2002)

National Bar Association (201 1 and periodically since 1988)

New Orleans Bar Association (1988 - present)

10. Bar and Court Admission :

a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.

Louisiana, 1988

There has been no lapse in membership.

b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
in membership. Give the same information for administrative bodies that require
special admission to practice.

Supreme Court of the United States, 2001

United States Court of Appeals for the Fifth Circuit, 2001

United States District Court for the Eastern District of Louisiana, 1988

United States District Court for the Western District of Louisiana, 1988

United States District Court for the Middle District of Louisiana, 1988

1 1 . Memberships :

a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 1 0 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership or participation, and indicate any office you held.
Include clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.

6

471

Alpha Kappa Alpha Sorority (2004 - 2005)

Big Brothers Big Sisters of Greater Houston (2005 2006)

Fundraising Committee (Raised money and secured sponsors for Gala to
help defray costs incurred by organization taking on little brothers and
sisters from New Orleans after Hurricane Katrina)

Catholic Daughters of Lafayette (1996)

Coalition of One Hundred Black Women, New Orleans Chapter (2009 - present)
Chair, Legislative Breakfast Committee (2009 - 201 0)

Committee of 21 (1994 - 1996)

HUME Child Development Agency (a United Way Agency)

Board of Directors (1994)

Institute of Politics (1995)

lack and Jill of America, New Orleans Chapter (2003 - 2008)

Executive Board Member (2003 - 2007)

Chair, Foundation and Grants for Children’s Leadership Programs (2007 -
2008)

Jewish Community Center, New Orleans (1999 - 2004)

Selection Review Panel for Environmental Law and Acquisition Responses
(2008)

Special Evaluation Committee of the Sewerage & Water Board (2000 - 2002)
Teen Court, Judge, Coach (2009)

United Way of Greater New Orleans, Women's Leadership Initiatives (2002 -
2005)

b. The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge lo hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion, or national
origin. Indicate whether any of these organizations listed in response to 1 1 a above
currently discriminate or formerly discriminated on the basis of race, sex, religion
or national origin either through formal membership requirements or the practical
implementation of membership policies. If so, describe any action you have taken
to change these policies and practices.

7

472

The membership of the following organizations is comprised of women: Alpha
Kappa Alpha Sorority, Coalition of One Hundred Black Women, New Orleans
Chapter, and the Catholic Daughters of Lafayette, Otherwise, to the best of my
knowledge, none of the organizations listed above currently discriminates or
formerly discriminated on the basis of race, sex, religion or national origin.

12, Published Writ i ngs and Public Statements :

a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Supply four (4) copies of all published
material to the Committee.

FBA Sponsors Mediation Workshop at Federal Court, The Advocate (New
Orleans Federal Bar Ass’n Journal) Vol. 19, No. 1, Fall 2009, at 12. Copy
supplied.

Diversity Refined: Access to Justice: The Many Faces of Environmental Justice:
Which one Speaks the Truth?, 56 La. B.J. 420, Apr./May 2009. Copy supplied.

Negotiate?: A Book Review and Commentary on the Books: Women who Don V
Ask a nd Ask for It. by Linda Babcock and Sara Laschever, 56 La. B.J. 191,
Oct./Nov. 2008. Copy supplied.

75''' Anniversary of Powell v. Alabama Commemorated , La. B.J. June/July 2008,
Vol. 56, No. 1. Copy supplied.

Department: Focus on Professionalism: Coping with Psychological Trauma , 55
La. B.J. 350, Feb./Mar. 2008. Copy supplied.

Preparing for the Next Disaster , La. Contractor, Vol. 55 No. 3, Mar. 1, 2006.
Copy supplied.

Letter to the Editor: New Curbside Recycling Program is Succeeding, Times
Picayune, Nov. 21, 1 995.

Letter to the Editor: Recycling is Cost-Effective Option for US. Ciiies, Times
Picayune, Feb. 21, 1995.

Additionally, from 2003 to 2004, 1 served as editor of the Advocate, a newsletter
published by the New Orleans Chapter of the Federal Bar Association.

b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, give the

8

473

name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.

Currently, I am a member of the Criminal Justice Working Group established by
Mayor Landrieu to study issues related to criminal justice and specifically to
make recommendations regarding the correct size of Orleans Parish Prison. After
being advised by consultants and hosting public hearings, we have made only one
recommendation, which was to recommend that the Sheriff be allowed to move
forward with contraction of a facility to accommodate 1,400 jail beds. We
continue to study what would be advisable as the correct size of the finished
project. A copy of the Working Group's resolution is supplied.

From 2000 to 2002, 1 served on the Special Evaluation Committee, which was
established to evaluate bids to run New Orleans’ sewer and water systems. The
committee made its recommendations in a report to the Sewerage and Water
Board. The report is supplied.

I participated in a committee chaired by now retired Judge Miriam Waltzer,
established by the Louisiana Supreme Court to report on Women in the Courts, in
1991-1992. My participation was as President of the Association of Women
Attorneys, and we facilitated and encouraged participation by women in the
community. I have provided a copy of the report, although J did not author it nor
was I named as a committee membeT.

c. Supply four (4) copies of any testimony, official statements or other

communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.

Regular New Orleans City Council Meeting, Saturday, December 11, 2010, City
Council Chambers. A video of the meeting is found al
http://ciivolho.aranicus.com/MediaPlaverphp7view id=3&clip id-715 . My
presentation begins roughly at 8:59.

Special Meeting of the New Orleans City Council, December 8, 2010, City
Council Chambers. A video of the meeting is found at
http://cilyofho.gramcus.com/MediaPlayer.php?view_id= ! 3 &clip_ id=733 . My
presentation begins roughly at 1 :08.

New Orleans City Council Criminal Justice Committee Meeting, December 8,
2010. A video of the meeting is found at

http://citvnfno.aranicus.com/MediaPlaver.php 9 v iew id ~3 &clip id=734 . My
remarks begin roughly at 1:15:21.

New Orleans City Council Criminal Justice Committee Meeting, October 6, 2010.
A video of the meeting can be found at

9

474

http://cityofn o .gran icus.com/MediaPIaver.p hD7view' id=3£clb id»=671 . My
remarks begin at roughly 56:27.

New Orleans City Council Criminal Justice Committee Meeting. June 9, 2010. A
video of the meeting can be found at

http://citvofno.gi'a ni cus.com/MediaPlaver,php?view id=3&clip id-36 3. My
remarks begin roughly at 47:38.

2011 City of New Orleans, Law Department Budget Proposal, Open and Effective
Government, presented to New Orleans City Council, November 1 1 , 20 1 0. Video
supplied.

201 1 City of New Orleans, Law Department Budget Proposal, Public Safety,
Presented to New Orleans City Council, November 9, 2010. Video available on-
line at http://citvofTio.aranicus.coni/MediaPlaver.php7view id— 7&clip id=715.

2011 City of New Orleans, Law Department Budget Proposal, Sustainable
Communities, Presented to New Orleans City Council, November 1, 2010 Video
supplied.

Presentation to Public Belt Railroad Commission, City Council chambers. New
Orleans, Louisiana, October 12, 2010. Video supplied.

Presentation to New Orleans City Council, introduced myself and discussed
function of the City’s law' department. May 20, 20 1 0. A video of the meeting is
available at

http://citvofno.aranicus.co ni/MediaPiaver.php7view id=3&clir> id=3 34. My
presentation begins at rougliiy 1 :23:00.

“Expert Testimony on Environmental Justice Issues in Louisiana,” Joint Meeting
of Louisiana House/Senate: Louisiana Committee on the Environment, March
1998. I have no notes, transcript or recording.

Numerous appearances before the New- Orleans City Council, Louisiana
Department of Environmental Quality and in public hearings throughout the state
of Louisiana on environmental issues from 1992 to 1996. I have no notes,
transcripts or recordings of these hearings, but press coverage of several
appearances is supplied.

d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by you, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk, If you do not have a copy of the speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.

10

475

If you did not speak from a prepared text, furnish a copy of any outline or notes
from which you spoke,

February ! 9, 201 1 : “Legislative Breakfast,” National Coalition of i 00 Black
Women, Greater New Orleans Chapter, 1 am Chair of the Public Policy &
Advocacy Committee , which put on the program, and so I described the
Committee and introduced the panelists: City Council members and in the
Mayor’s absence, Deputy CAO, Ann Duplesses, Mayor’s Commissioner of
HealLh, Dr. Karen DeSalvo and Mayor’s Advisor on Economic Development,
Aimee Quirk. I have no notes, transcript, or recording. The address of the
National Coalition of 100 Black Women is 1 925 Adam C. Powell Jr. Boulevard,
Suite 1L, New York, New York 10026.

June 24, 2010: “Drafting Alternative Dispute Resolution Laws," Tulane Law
School’s Annual International Legislative Drafters’ Conference. Presentation
slides supplied.

June 17, 2010: Moderator, “Mediation Advocacy Workshop,” Chair and
Moderator, sponsored by the New Orleans Chapter of the Federal Bar
Association. I have no notes, transcript, or recording. The address of the FBA is
500 Poydras Street, Room 364, Hale Boggs Federal Building, New Orleans,
Louisiana 70130.

December 10, 2009: “Mediation Strategies and Techniques When Settling Cases,”
CLE sponsored by the New Orleans Bar Association. Program materials
supplied.

December 7, 2009: “Quality of Lite and Work Balance,’’ Speaker, seminar
sponsored by the Quality of Life Committee of the Louisiana State Bar
Association. Program materials supplied.

September 10, 2009: Chair and Moderator, “Mediation Workshop,” sponsored by
the New Orleans Chapter of the Federal Bar Association. I have no notes,
transcript or recording, but I wrote an account of the workshop entitled, FBA
Sponsors Mediation Workshop at Federal Court, and supplied a copy in response
to Question 12(a).

June 25, 2009: “Drafting Alternative Dispute Resolution Laws,” 2009
International Legislative Drafting Institute at Tulane Law School. Presentation
slides supplied.

April 24, 2009: “Negotiating for Yourself,” presented in CLE seminar sponsored
by the Louisiana State Bar Association CLE directed to Women Attorneys,
section entitled. Running with the Big Dogs without Running Away. I have no
notes, transcript, or recording. The address of the Association is 60 1 St. Charles
Avenue, New Orleans, Louisiana 70130.

11

476

February 27, 2009: “What Clients and Participating Attorneys Expect from
Mediators” and “Ways to Maximize Your Mediator’s Effectiveness,” Sponsored
by Region V of the National Bar Association in Shreveport Louisiana. I have no
notes, transcript, or recording. The address of the NBA is 1225 1 1 tli Street, NW
Washington, D.C. 20001.

September 19, 2008: “Collaborative Law, Interest-based Negotiation and Value-
added Solutions as used in Mediation,” Lafayette Bench Bar Conference.
Presentation slides supplied.

June 19, 2008: “Drafting Alternative Dispute Resolution Laws,” 2008
International Legislative Drafting Institute at Tulane Law School, 6329 Freret
Street, New Orleans, Louisiana 701 18. Presentation slides supplied.

March 13, 2008: Moderator, Powell v. Alabama, 75 ,h Anniversary Symposium
presented by the New Orleans Federal Bar association. I supplied a copy of the
article I wrote for the symposium in response to Question 12(a). The article was
entitled, 7 5 ,h Anniversary of Powell v. Alabama Commemorated.

November 19, 2007: “Closing the Deal: A Mediator’s Perspective on Negotiating
Agreement,” presented at Tulane Law School, 6329 Freret Street New Orleans,
Louisiana 70118. I used an earlier version of the presentations supplied for the
June 19, 2008, June 25, 2009, and June 24, 2010 events.

March 31, 2006: Panelist, “Toxic Torts and Katrina,” Hurricane Katrina:
Environmental Impact and Lessons on Public Health and Justice Symposium,
Thurgood Marshall School of Law, Texas Southern University. I have no notes,
transcript, or recording. The address of the school is 3 1 00 Cleburne Street,
Houston, Texas 77004.

November 16, 2004: Louisiana Special Education Law, National Business
Institute, “Special Education Law Update,” “Successful ways to Handle
Disciplinary Actions lor Special Needs Students,” and “Ethics.” I have no notes,
transcript or recording. The address of the National Business Institute is P.O. Box
3067, Eau Claire, Wisconsin 54702.

Fall 2003 and Fall 2004: “Using Evidence at Trial,” presenter for skills course,
Loyola Law School. I have no notes, transcript or recording. Patricia Phipps is
the Director of the Law Skills program at Loyola University New Orleans and can
be contacted at 7214 Saint Charles Avenue, Campus Box 905, New Orleans,
Louisiana 701 18.

April 30, 2004: School Law in Louisiana, National Business Institute, “First
Amendment and Other Constitutional Issues,” “Divulging School Records: What
is Confidential, What is not?” and “Ethics.” I have no notes, transcript, or

12

477

recording. The address of the National Business Institute is P.O. Box 3067, Eau
Claire, Wisconsin 54702.

October 3, 2003: “Professionalism and the Boomerang Effect, A Day in Federal
Court,” Louisiana State Bar Association. I have no notes, transcript, or recording.
The address of the Louisiana State Bar Association is 601 Saint Charles Avenue,
New Orleans, Louisiana 70130.

April 11-13, 2003: “Tiptoeing Towards Trial; Pre-Trial and Discovery Issues,”
New Orleans Bar Association CLE, Biloxi, Mississippi. I have no notes,
transcript, or recording. The address of the New Orleans Bar Association is The
Poydras Center, 650 Poydras Street, Suite 1505, New Orleans, Louisiana 70130.

March 6, 2003: “The Fiduciary Responsibilities and Obligations Pursuant to State
and Federal Environmental Regulations,” New Orleans Bar Association CLE,
Seaside, Florida. I have no notes, transcript, or recording. The address of the
New Orleans Bar Association is The Poydras Center, 650 Poydras Street, Suite
1505, New Orleans, Louisiana 70130.

February 14, 2002: Recent Developments in Environmental Law, New Orleans
Bar Association CLE, Seaside, Florida. 1 have no notes, transcript, or recording.
The address of the New Orleans Bar Association is The Poydras Center, 650
Poydras Street, Suite 1 505, New Orleans, Louisiana 70130.

October 20, 1999: “Environmental Racism: Does it really exist?” Loyola Law
School, Louis Westerfield Society Speaker Series, New Orleans, Louisiana. I
have no notes, transcript, or recording. The address of the society is Loyola
University New Orleans, 7214 Saint Charles Avenue, New Orleans, Louisiana
70118.

October 2, 1 998: “Basic Issues in Environmental Law,” Continuing Legal
Education Seminar, Southern University Law Center, Baton Rouge, Louisiana. I
have no notes, transcript, or recording. The address of the Southern University
Law Center is 2 Roosevelt Steptoe Drive, Baton Rouge, Louisiana 70813.

July 31, 1998: Panel on Environmental Justice, National Association of Black
Journalist Conference, Washington, D.C. I have no notes, transcript, or recording.
The address of the Association is 1100 Knight Hall, Suite 3 1 00, College Park,
Maryland 20742.

April 1, 1998: “Environmental Justice: Balancing the Scales,” Air & Waste
Management Association, Spring Technical Conference, Baton Rouge, Louisiana.

I have no notes, transcript, or recording. The address of the association is One
Gateway Center, 3" 1 Floor, 420 Fort Duquesne Boulevard, Pittsburgh,
Pennsylvania 15222.

13

478

September 18, 1996: St. Peter Claver Chapter of All Congregations Together
meeting. I have no notes, transcript, or recording, but press coverage is supplied.

April 20, 1 996: League of Women Voters leadership seminar for high school and
college students, Loyola University. I have no notes, transcript, or recording, but
press coverage is supplied.

April 16, 1996: Discussion on trash pickup, Aurora Community Association
meeting, St. Stephen Lutheran Church. I have no notes, transcript, or recording.

Spring 1995: “Current Urban Environmental Law Issues, Solving the Garbage
Crisis,” Tulane University Law School Environmental Conference, New Orleans,
Louisiana. 1 have no notes, transcript, or recording. The address of Tulane
University Law School is 6329 Freret Street, New Orleans, Louisiana 70130.

October 26, 1994: Panelist, “Update on Recycling,” Women for a Better
Louisiana meeting. I have no notes, transcript, or recording. The address of the
organization is P.O. Box 8361, Metairie, Louisiana 7001 1.

September 12,1 994: Little Woods Community meeting, Eastshore Village
Community Association, Curran Place Community Room. 1 have no notes,
transcript, or recording.

July 6, 1994: Announcement of “Clean Team” proposal, Gallier Hall, New
Orleans, Louisiana. I have no notes, transcript, or recording, but press coverage is
supplied.

April 5, 1 992: Speaker at Andrew Bell Junior High, importance of libraries and
reading in my profession. I have no notes, transcript, or recording.

e. List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.

Michelle Krupa, As New Orleans Seeks to Rework Two Trash Deals, I.andrieu
Says: Other Parishes Get Job Done for Far Less, Timcs-Picayune, Nov. 1 1, 2010.
Copy supplied.

Frank Donze, Former City Hall Employee Honored , Times-Picayune, Nov. 6,
2010. Copy supplied.

Frank Donze, Landrieu to Rebid Garbage Contracts , Times-Picayune, Nov. 5,
2010. Copy supplied.

14

479

Interviews with all major television and radio stations regarding the City’s Traffic
Camera Program considering Civil District Court Judge’s issuance of stay order
and Fourth Circuit’s lifting of stay, on or about October 5, 2010. I have been
unable to obtain copies of these recordings, but press coverage reflecting some of
my comments is supplied below.

Staff, Ruling on Traffic Cameras Awaited: Appeals Court Keeps Them Online
Until Then , Times-Picayune, Oct. 5, 2010. Copy supplied.

New Orleans Catches Up to Speed, Katrina Connection (blog), Oct. 5, 2010.

Copy supplied.

Curt Sprang, brief: Appeal Court Extends Cameras’ Rim, WGNO-TV, Oct. 4,
2010. Copy supplied.

N.O. Traffic Cameras to Stay — For Now, WWLTV.com, Oct. 4, 201 0. Video
news story available at hrtp://www.wwltvxom/news/1ocal/NQ-traffie-cams-(o-
stav — for-now-1 04279894.html .

Bruce Eggler, Traffic Cameras Survive, So Far, Times-Picayune, Oct. 2, 2010.
Copy supplied.

Louisiana: New Orleans Traffic Cameras Under Legal Pressure ,
theNewspaper.com, Oct. 2, 2010. Copy supplied.

Traffic Camera Violations Still Valid, Slates News Service, Oct. 1, 2010. Copy
supplied.

Statement from City Attorney on Traffic Camera Preliminary Injunction, States
News Service, Oct. 1,2010. Copy supplied.

Appeals Court . Traffic Cameras Again Ticketing in Orleans , WWL.com, Oct. 1,
2010. Copy supplied.

Page Turners - People to Watch in 2010 , New Orleans Magazine, Sept. 201 0.
Copy supplied.

Interview with Lucy Bustamante, WWL television station regarding City’s
Volunteer Hearing Officer Training for Blight Hearings. August 2010. I have
been unable to obtain a copy of this recording.

Mayor Landrieu Plans to Open Full Service Hospital in New Orleans East by
Fall 2013 , BestofNewOrlcans.com Blog of New Orleans, July 16, 2010. Copy
supplied (quoting July 15 press conference noted below).

15

480

Press Conference to announce renegotiation of City’s purchase of Methodist
Hospital from UHS from $40 million to $15.2 million, July 15, 2010, Mayor’s
Press Room. I have been unable to obtain a copy of a transcript or recording.

What Makes Lawyers Successful ?, The Complete Lawyer, July/August 2008. I
have been unable to obtain a copy of this article.

Road Home Becomes a Little Smoother with Help of Loyola 's Mediation Clinic,
Loyola at a Glance, May 30, 2008. Copy supplied.

Susan Finch, Ag Street Landfill Case Gets Ruling , Times-Picayune, Jan. 27, 2006.
Copy supplied.

Gordon Russell, Landfill's Reopening is Raising New Stink, Gent illy Site has
Environmental Problems, Say Senators, Others , Times-Picayune, Nov. 21, 2005.
Copy supplied.

Jeanmarie Mayfield, Algiers Family Makes World Their Oyster , Times-Picayune,
July 21, 2005. Copy supplied.

Deon Roberts, Eastern New Orleans Residents Upset that their Superfund Site is
Taken Off EPA Priorities List, New Orleans CityBusiness, Nov. 8, 2004. Copy
supplied.

Stephanie Grace, Company Touts its Rid for Sewer, Water Contract ; Cost is
Higher , but it ’s Better Deaf, Firm Says, Times-Picayune, Feb. 28, 2002, at Metro
p. 1. C^py supplied.

Joe Gyan, Jr., "Environmental Racism ” Global, Experts Believe, The Advocate,
July 31, 2001. Copy supplied.

WDSU, Channel 2, Baton Rouge, LA: Fourth Amendment Issues Involved in
F.dwin Edwards Trial, May 5, 2000. I have been unable to obtain a copy of this
recording.

Coleman Warner, Many Residents Prefer to Check Just One Box on Form, Times-
Picayune, Feb. 27, 2000. Copy supplied.

Vicki Ferstel, Environmental Feud Involves Shintech, The Advocate, Nov. 1 3,
1998. Copy supplied.

Vicki Ferstel, EPA Official Confirms Pro-Shiniech Pair 's Ouster, The Advocate,
Nov. 10, 1998. Copy supplied.

Henry Payne, Green Redlining: How Rules Against "Environmental Racism”

Hurt Poor Minorities Most of All, Reason, Oct. 1, 1998. Copy supplied.

16

481

Danielle Knight, U.S. -Environment; Problems of "Environmental Racism ", Inter
Press Service, Sept. 17, 1998. Copy supplied.

Henry Payne, Green Nonsense. Black Losses, The Weekly Standard, Aug. 3,
1998. Copy supplied.

Lolis Eric Elie, Standing Up for Shintech, Times- Picayune, June 24, 1998. Copy
supplied.

Lolis Eric Elie, Taking Risks to Do Better, Times-Picayune, June 22, 1998. Copy
supplied.

Clark Political Report, taped March 8, 1 998, New Orleans, Louisiana, Current
Environmental Law Issues. 1 have been unable to obtain a copy of this recording.

Chris Gray, Shintech Foes. Supporters Face Off, Times-Picayune, Jan. 23, 1998.
Copy supplied.

Sara Shipley, Race, Jobs. Pollution in Bayou , Christian Science Monitor, Jan. 12,
1998. Copy supplied.

Tracie Reddick, Environmental Injustice ?, Tampa Tribune, Dec. 14, 1997. Copy
supplied.

Chris Gray, State Favors Shintech Plant, Opponents Say, Times-Picayune, Dec. 9,
1997. Copy supplied.

Dennis Cauchon, Racial, Economic Divide in La., USA Today, Sept. 9, 1997.
Copy supplied.

John McMillan, Hearing Called a Victory, The Advocate, Sept. 3, 1 997, Copy
supplied.

Frank Esposito, Shintech PVC Plant Steeped in La. Politics, Plastics News, Aug.
18, 1997. Copy supplied.

Maria Giordano, Groups Intervene to Back Shintech, Jobs are Needed, Attorney
Says, Times-Picayune, Aug. 9, 1997. Copy supplied.

Mark Schleifstein, City Drops Fine on Trash Collectors; N.O. Settles for Litter
Cans Instead, Times-Picayune, Dec. 17, 1996. Copy supplied.

Mark Schleifstein, A Bumper Crop; Signs Pointing to Broken Laws , Times-
Picayune, Nov. 6, 1996. Copy supplied.

17

482

James Vamey and Mark Schleifsteirt, Waste Department Seems to Have Cleaned
its Mess , Times-Picayune, Aug. 31, 1996, Copy supplied.

James Vamey, Political Signs Are Removed by City , Times-Picayune, Aug. 24,
1996. Copy supplied.

Lolis Eric Elie, Collectors Picking Up, Times-Picayune, July 31, 1996. Copy
supplied.

James Vamey, Trash Hauler, City Hall Take Heat , Times-Picayune, July 19,
1996. Copy supplied.

James Vamey, More Garbage Fines Expected, Times-Picayune, July 1 6, 1 996.
Copy supplied.

James Vamey, Despite E'ines, Garbage Pickup Lags, Times-Picayune, July 16,
1996. Copy supplied.

Mark Schleifstein, City Fines Waste Company for Leaving Garbage at Curbs,
Times-Picayune, July 13, 1996. Copy supplied.

Stewari Yerton, N.O. Has a Hunch that it Shone, Times-Picayune, June 21, 1996.
Copy supplied.

Quasimodo and the Quarter , Times-Picayune, June 19, 1996. Copy supplied.

Andy Seiler, Disney's French Connection, USA Today, June 19, 1996. Copy
supplied.

Stewart Yerton, Wide World of Disney Takes Shine to N.O., Times-Picayune, June
16,1996. Copy supplied.

Christopher Cooper and Mark Schleifstein, Director Circulates Unpleasant
Memo, Times-Picayune, June 1, 1996. Copy supplied.

Mark Schleifstein, Report: Trucking Waste Best for City, Times-Picayune, May
29, 1996, at El. Copy supplied.

Alfred Charles, Protest against Cox Produces a Lot of Noise, but Little Else ,
Times-Picayune, Apr. 6, 1996. Copy supplied.

Cleanup Revives Community Spirit, Times-Picayune, Mar. 3 1 , 1 996. Copy
supplied.

Valerie Faciane, N.O. 's Goal is Cleanest La. City, Times-Picayune, Mar. 14,

1996. Copy supplied.

18

483

Mardi Gras Wildness Gives Way to Lent, Dallas Morning News, Feb. 22, 1 996.
Copy supplied.

Alfred Charles, Carnival Recycling Reduces Trash Totals, Times-Picayune, Feb.
20, 1996. Copy supplied.

What They re Reading ; A Sampling of Local Tastes in Literature, Times-
Picayune, Jan. 7, 1996. Copy supplied.

Alfred Charles, Recovery 1 Landfill to Shut Down, Times-Picayune, Dec. 1, 1995.
Copy supplied.

Allan Kalz Show, Regulations of Landfills and Recycling, Fall 1995, New
Orleans, Louisiana. I have been unable to obtain a copy of this recording.

Sunday Morning Journal with Bill Roussel; Current Environmental Issues
Affecting Minority Communities, Nov. 21, 1995. I have been unable to obtain a
copy of this recording.

Matt Scallan, Study: Share Jeff s Landfill, Times-Picayune, Oct. 28, 1 995 . Copy
supplied.

Pitching Lrt On Recycling , Times-Picayune, Oct. 4, 1995. Copy supplied.

Connie Jackson, Cashing In On Trash, City to Head Off Theft of Recycling Bins,
Times-Picayune, Oct. 2, 1995. Copy supplied.

Alfred Charles, N. 0. Getting Ready to Recycle; Curbside Bins Going to Homes,
Times-Picayune, Sept. 19, 1995. Copy supplied.

Alfred Charles, City Recycling Delayed Again, Times-Picayune, Aug. 30, 1 995.
Copy supplied.

Katy Read, Algiers Will be First in N. O. to Get Curbside Recycling, Times-
Picayune, Aug. 30, 1995. Copy supplied.

Katy Read, Big Pile of Tires Deflated a Bit, Times-Picayune, Aug. 25, 1 995.

Copy supplied.

Alfred Charles, N.O. Gets SI. 4 Million Grant to Collect 700,000 Old Tires,
Times-Picayune, Aug. 17, 1995. Copy supplied.

Alfred Charles, Mayor ‘s Quiet Centra! America Trip Catches Flak, Times-
Picayune, Aug. 12, 1995. Copy supplied.

19

484

Alfred Charles, Landfill Crisis is Delayed, Times-Picayune, July 29, 1 995. Copy
supplied.

Recycling Nearing Reality , Times- Picayune, July 14, 1995. Copy supplied.

Christopher Cooper, N O. Faces Crisis over Garbage Disposal , Times-Picayune,
July 9, 1995. Copy supplied.

Christopher Cooper, N.O. Picks Recycling Director; Cans, Papers to Go
Curbside, Times-Picayune, July 6, 1995. Copy supplied.

Alfred Charles, N.O. is Promised Recycling by Sept. 1 , Times-Picayune, July 5,
1995. Copy supplied.

Jason Berry, Solving the Garbage Crisis : Eastern New Orleans Residents and the
Sanitation Department Grapple with Waste Management Problems , New Orleans
City Business, June 19, 1995. Copy supplied.

Matt Scalan, Landfill in Jeff Might be Open Into 1999, Times-Picayune, May 19,
1995. Copy supplied.

Regional Answer for Landfills , Times-Picayune, May 19, 1995. Copy supplied.

Connie Jackson, Extra Workers Pick Up Pace of Flood Debris, Times-Picayune,
May 18, 1995. Copy supplied.

Mark Schleifstein, N.O. Landfill Told to Close in July, Times-Picayune, May 17,
1995. Copy supplied.

Christopher Cooper, 9-Day-Old Trash, Storm Debris Pile Up in Marigny,

Bywater, Times-Picayune, May 16, 1995. Copy supplied.

Christopher Cooper, In NO., Waiting is the Hardest Part, Times-Picayune, May
12, 1995. Copy supplied.]

Valerie Faciane, Nationwide Cleanup to Begin Saturday, Times-Picayune, Apr. 6,
1995. Copy supplied.

Mark Schleifstein, N.O. Lacks Plan for Trash Crisis, Times-Picayune, Mar. 1 3,
1995. Copy supplied.

John Pope and Connie Jackson, Trash Rises to New Height , Times-Picayune,

Mar. 2, 1995. Copy supplied.

Rainy March Gras Leaves New Orleans Awash in Revenue , Dallas Morning
News, Mar. 2, 1995. Copy supplied.

20

485

The Business Report, with Representative Jon Johnson, Urban Environmental
Issues and Their Economic Impact, Spring 1995. I have been unable to obtain a
copy of this recording.

Police Celling Jump on Crowd Control, Times-Picayune, Feb. 23, 1995. Copy
supplied.

Mark Schleifstein, 5 Dumps Raided, Closed by City , Times-Picayune, Feb. 2 1 ,

1 995. Copy supplied.

Tyler Bridges, Despite DEQ, Tires Expected to Pile Higher, Times-Picayune,
Dec. 27, 1994. Copy supplied.

N.O. Tire Fire Snuffed Out, Times-Picayune, Dec. 6, 1994, Copy supplied.

Tyler Bridges, Defunct Shredder Could End Tire Trouble, Times-Picayune, Nov.
25, 1994. Copy supplied.

Clean Team Sets Sights on East Bank, Times-Picayune, Nov. 1 8, 1 994. Copy
supplied.

Paul Atkinson, Algiers Utter Cleanup Recruiting Volunteers, Times-Picayune,
Nov. 11, 1994. Copy supplied.

Allred Charles, N.O. Heaps Praise on Compost Plan, Times-Picayune, Sept. 27,
1994. Copy supplied.

Rhodesia Jackson, Volunteers Clean Up in East N. O. , Times-Picayune, Aug. 1 4,

1 994. Copy supplied.

Dawn Ruth, Unpaid Fees Stall Mortal's Recycling Plans, Times-Picayune, July 6,
1 994. Copy supplied,

Dennis Persica, Club 's Trash Dumped in Lap of City, Times-Picayune, June 29,
1994. Copy supplied.

Alfred Charles, NO. in Urgent Need of Landfill, Panel Says, Times-Picayune,
June 27, 1994. Copy supplied.

Karen Gravois, New Machine Touted as Answer to Tire Troubles, Times-
Picayune, May 12, 1994. Copy supplied.

Bill Grady, Patrol Down in Dumps about Poor Firsl Year, Times-Picayune, May
9, 1 994. Copy supplied.

21

486

Courtroom Advocate Program Launched, Times-Picayune, May 6, 1991. Copy
supplied.

13. Judicial Office : State (chronologically) any judicial offices you have held, including
positions as an administrative law judge, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.

I have never held judicial office.

a. Approximately how many cases have you presided over that have gone to verdict
or judgment?

l. Of these, approximately what percent were:

jury trials:

%

bench trials:

% [total 100%1

civil proceedings:

%

criminal proceedings:

% [total 100%]

b. Provide citations for all opinions you have written, including concurrences and
dissents.

c. For each of the 10 most significant cases over which you presided, provide: (1) a
capsule summary of the nature the case; (2) the outcome of the case; (3) the name
and contact information for counsel who had a significant role in the trial of the
case; and (3) the citation of the case (if reported) or the docket number and a copy
of the opinion or judgment (if not reported).

d. For each of the 1 0 most significant opinions you have written, provide; (1)
citations for those decisions that were published; (2) a copy of those decisions that
were not published; and (3) the names and contact information for the attorneys
who played a significant role in the case.

e. Provide a list of all cases in which certiorari was requested or granted.

f. Provide a brief summary of and citations for all of your opinions where your
decisions were reversed by a reviewing court or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings. If
any of the opinions listed were not officially reported, provide copies of the
opinions.

g. Provide a description of the number and percentage of your decisions in which
you issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored.

22

487

h. Provide citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, provide copies of the opinions.

i. Provide citations to all cases in which you sat by designation on a federal court of
appeals, including a brief summary of any opinions you authored, whether
majority, dissenting, or concurring, and any dissenting opinions you joined.

14. Recusal: If you are or have been a judge, identify the basis by which you have assessed
the necessity or propriety of recusal (If your court employs an "automatic" recusal system
by which you may be recused without your knowledge, please include a general
description of that system.) Provide a list of any cases, motions or matters that have
come before you in which a litigant or party has requested that you recuse yourself due to
an asserted conflict of interest or in which you have recused yourself sua sponte. Identify
each such case, and for each provide the following information:

I have never been a judge.

a. whether your recusal was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any other person or interested party; or if you
recused yourself sua sponte;

b. a brief description of the asserted conflict of interest or other ground for recusal;

c. the procedure you followed in determining whether or not to recuse yourself;

d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any
other ground for recusal.

15. Public Office. Political Activities and Affiliations :

a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, state chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.

I was appointed to the position of City Attorney for the City of New Orleans in
May 2010, by Mayor Mitchell Landrieu. I currently serve in that position.

I was appointed to the position of Director of the Department of Sanitation for the
City of New Orleans in May 1994, by Mayor Marc H. Moriah I served in that
position until the end of 1 996.

I have had no other candidacies for elective office or nominations for appointed
office.

23

488

b. List all memberships and offices held in and services rendered, whether

compensated or not, to any political party or election committee. If you have ever
held a position or played a role in a political campaign, identify the particulars of
the campaign, including the candidate, dates of the campaign, your title and
responsibilities.

I have never held membership in or rendered services to any political party or
election committee that I can recall. I have allowed my name to be listed as a
supporter for a number of state court judicial campaigns in Louisiana over the
years. Although I cannot recall each instance in which I did so, I believe I was
listed as a supporter in the following campaigns: Louisiana Supreme Court Judge
Bemette Johnson, Fourth Circuit Court of Appeal Judges Rosemary Ledet (also
when she was elected district court judge), Terri Love (also when she was elected
district court judge), Patricia Murray, Madeline Landrieu (also when she was
elected district court judge), Joan Bernard Armstrong, Charles Jones, F.dwin
Lombard and Dennis Bagneris; Civil District Court Judges Kem Reese, Tiffany
Chase, Michael Bagneris, Piper Griffin, Herbert Cade, Ethel Simms Julian,

Nadine Ramsey and Yada McGee; Criminal District Court Judges Arthur Hunter,
Camille Buras and Laurie White.

From 1 994 to 1 996, 1 recall handing out pamphlets on the weekends prior to
elections. I have searched the Secretary of State website to identity which
elections I would have been involved with and to the best of my recollection, I
believe I handed out pamphlets for the campaigns of Louisiana Supreme Court
Justice Bemette Johnson, Fourth Circuit Court of Appeal Judge Patricia Murray
and Civil District Court Judge, Orleans Parish, Terry Love. I also believe I was
involved in the campaign for a referendum regarding renewal of a bond issue
dedicated to infrastructure improvements of Orleans Parish Schools.

1 6. Legal Career: Answer each part separately.

a. Describe chronologically your law practice and legal experience after graduation
from law school including;

i. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;

I have not served as a clerk to a judge.

ii. whether you practiced alone, and if so, the addresses and dates;

Except for the occasional pro bono advice or acceptance and then referrals
to other lawyers made while I was teaching law, I have never practiced
law alone. I may have filed one or two cases while I was teaching law just
prior to referring to other counsel to preserve the rights of a party.

24

489

iii. the dates, names and addresses of law firms or offices, companies or

governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.

1988-1992

Adams & Reese, LLP

4500 One Shell Square

Suite 4500

70] Poydras Street

New Orleans, Louisiana 70136

Associate Attorney

1992-1994

Tulane Law School

Tulane Environmental Law Clinic

6329 Freret Street

New Orleans, Louisiana 70118

Environmental Law Teaching Fellow

1994

Christovich & Kearney, LLP
602 Poydras Street
Suite 2300

New Orleans, Louisiana 70130
Of Counsel

1996-1998
Oncbane Law Firm
1200 Camelia Boulevard, #300
Lafayette, Louisiana 70502
Associate Attorney

1998 - 2000

Southern University Law Center
2 Roosevelt Steptoe Drive
Baton Rouge, Louisiana 701 1 1
Assistant Professor of Law

2000 - 2003

Milling, Benson, Woodward, LLP
909 Poydras Street, #2300
New Orleans, Louisiana 70112
Special Counsel (2000 - 2002)

Equity Partner (2003)

25

490

2003 - 2004

Hoffman, Siegal, Seydel, Bienvenu and Centola, LLP
650 Poydras Street
Suite 2100

New Orleans, Louisiana 70130
Special Counsel

2003 -2007; 2009 -2010
Chaffe, McCall, LLP
1 1 00 Poydras Street, Suite 2400
New Orleans, Louisiana 70163

Special Partner (and 1 consulted on a case by case basis while teaching in
Mediation Clinic at Loyola Law School)

2007-2009

Loyola College of Law, Law Clinic, Mediation Section

6363 Saint Charles Avenue

New Orleans, Louisiana 701 18

Visiting Assistant Clinical Professor of Law

May 2010 - present

City of New Orleans

Mayor Mitchell J. Landrieu

1300 Perdido Street, Suite 5E03

New Orleans, Louisiana 70112

The City Attorney for the City of New Orleans

iv. whether you served as a mediator or arbitrator in alternative dispute
resolution proceedings and, if so, a description of the 10 most significant
matters with which you were involved in that capacity.

I served as a mediator in the Louisiana Hurricane Mediation Program in
2006 and 2007. After Hurricane Katrina, the Louisiana Department of
Insurance established a mediation program to help resolve disputes
between insurers and Louisiana policy holders arising from damages to
residential property caused by Hurricanes Katrina and Rita. The
mediations were paid for by the insurance company and were free to
policyholders. I estimate that I mediated more than 100 cases.

As a founding member of Loyola University of New Orleans College of
Law Mediation Clinic, I mediated disputes between homeowners and
contractors arising out of home repairs and renovations resulting from
damages caused by Hurricanes Katrina and Rita and the levee breach. I
served as a teaching aid for third year law students, and we mediated over
100 such cases that were referred to us by the Attorney General’s Office
of the State of Louisiana. Also as part of the Loyola clinic, I mediated

26

491

child custody matters referred to us by the Civil District Court for the
Parish of Orleans. Child custody issues were exacerbated after Hurricanes
Katrina and Rita because many parents ended up in different cities or
states from each other and lived and worked under different
circumstances. I mediated dozens of child custody cases in an effort to
help families resolve such difficult issues in a manner that made the best
interest and welfare of the child the first priority.

Working with Criminal District Court Judges for the Parish of Orleans, the
New Orleans District Attorney’s Office, the State Attorney General’s
Office, when appropriate, and the New Orleans Public Defender’s Office,

I also mediated restitution claims involving alleged contractor fraud.

These mediations provided a more streamlined and expeditious process to
these parties in an effort to relieve an overburdened and badly depleted
criminal justice system post-Katrina and Rita.

1. Louisiana Hurricane Mediation Program/AAA Mediation: House
that once sat on stilt pilings overlooking Lake Ponchatrain was completely
destroyed after Hurricane Katrina; only the pilings remained. Home
owners’ insurance initially paid nothing claiming house destroyed by
rising waters which topped 15 feet and because of the flood exclusion in
the homeowner’s policy. Homeowner needed to demonstrate wind
damage was caused as a result of wind before flooding occurred in order
fo recover any money. Expert reports were submitted by both parties.
Eventually wind versus flood damage issue was compromised and
settlement reached.

2. Louisiana Hurricane Mediation Program/AAA Mediation:

Multiple mediations were held between insurance companies represented
by insurance adjusters and homeowners holding insurance policies. Those
homeowners with attorneys, it appeared, were able to negotiate better
settlements, but had to offset their settlements with attorney fees.

Therefore, a new business arose: public adjusters assisting homeowners
with preparation of their claims for a lower fee than attorneys. While
whether public adjusters were practicing law without a license was being
decided by the Louisiana Supreme Court, the role public adjusters could
play in hurricane mediations became a big issue in settlement negotiations.
At times they were kept out of the mediations, and at others they were
only allowed to assist in presenting damages. Monitoring the role of The
pubic adjuster and mediating their presence became significant issues in
post-Katrina insurance mediations.

3. Louisiana Hurricane Mediation Program/AAA Mediation:

Property owner made claim for damaged property inside her home due to
roof damage during Hurricane Katrina. The property owner produced
receipts for the original property, including “price tags” for expensive

27

492

oriental rugs that allegedly were damaged by water leaking into the home
from the damaged roof. The insurance adjuster had photos from a
previous claim by the homeowners suggesting that the rugs were not as
unique and expensive as the tags and receipts offered by the homeowner
showed. Further, it seems the expensive tags had been taken from rugs in
a Magazine Street, New Orleans, rug shop. The tags were traceable and
the rugs had never been purchased. A resolution was reached.

4. Louisiana Hurricane Mediation Program/ AAA Mediation:
Homeowners in a gated community in Eastern New Orleans lost
everything in their home to Hurricane Katrina and/or flood damages
following storm surge and/or levee breach, and had no flood insurance.
Their homeowners’ insurance company claimed 1 5 feet of water was
cause for entire damage to two story home and personal property and
therefore denied coverage. Parts of roof had been tom from the home,
allowing negotiation of amounts owed for what could have been destroyed
as a result of the wind damage to the roof before flooding occurred. A
settlement of a little over a million dollars was reached.

5. Attorney General Alleged Contractor Fraud Mediation: Contractor
from Texas came to New Orleans to rebuild homes for people without
insurance, relying on money from the federally funded Road Home
Program to rebuild their homes. Contractor low bidded on many projects,
causing him to run out of money before he could complete the home of
this elderly St. Bernard Parish woman. The homeowner’s five children
were persistent in pursuing this contractor because they did not want their
aging and now seriously ill mother to die before returning to their family
home. The parties agreed to an independent third party contractor who
would provide an estimate of the cost and time for completion. The
family agreed not to ask that the contractor’s license be revoked so that he
could go to work for a relative who advanced him nearly SI 00,000 to pay
the third party contractor to complete the home.

6. Alleged Contractor Fraud Restitution Mediation: There were five
alleged victims. The contractor was from out of state. I mediated a
ceiling and a floor for restitution and other parameters that would satisfy
the judge and the prosecutor and Fell within a range to which the
contractor and his lawyer could agree. I mediated a consolidated figure
among the victims for which restitution would be made and mediated how
it would be distributed among the victims. The contractor entered a half-
way house and employment was secured so payment could be made to the
victims. A compromise was reached.

7. Alleged contractor fraud: Parties agreed that homeowner’s
expectations of what the contractor could deliver for price paid was

28

493

unreasonable after consulting with three independent contractor “experts.”
The matter was resolved without involvement of the court or prosecutors.

8. Alleged contractor fraud : Mediated a schedule of work and
payment between the homeowner and the contractor. The job was
completed pursuant to the schedule and the contractor was paid.

9. Alleged contractor fraud: Contractor was member of same church
congregation as homeowner. He allegedly ran off with renovation money
without completing job. In addition to mediating a schedule of repayment
of the money owed, the homeowner wanted the contractor to apologize in
front of the Congregation. Contractor agrees under the condition that the
other church member would help him regain the trust of the Congregation
so that he and his family could Tetum to the Church as members.

10. Visitation Mediation: Family separated during evacuation prior to
Hurricane Katrina. I mediated father’s contribution to purchase of
mother’s home in New Orleans and to tuition at the schools he wanted the
children to attend. Father dropped claim for sole custody and attempt to
move children to another state. As part of the negotiated settlement the
family agreed to enter into professional counseling.

b. Describe:

i. the general character of your law practice and indicate by date when its
character has changed over the years.

From 1988 to 1992, the character of my law practice was that of a laTge
corporate defense firm. I practiced in the areas of financial litigation,
commercial litigation, toxic tort litigation, health care law and
environmental law and litigation.

From 1 992 to 1 994, the character of my law practice changed to public
interest law and teaching. I represented state, local and national
environmental and energy conservation organizations, in opposing
permits, policies and laws my clients believed were injurious to the human
health and environment of the state.

In 1994, 1 briefly returned to a corporate defense practice before being
appointed as the Director of Sanitation for the City of New Orleans.

From 1996 through May 2010, when 1 was not teaching, I practiced law
with mid-to-large firms defending public bodies, railroads, corporations,
businesses and individuals in real estate, environmental, personal injury',
insurance, commercial and other business related matters.

29

494

In 2006, 1 began mediating significantly. From 2007 to 2009, when I was
not teaching mediation and negotiation, I was primarily a mediator in the
public interest area or for parties who could not otherwise afford to litigate
or pursue resolution to their disputes.

On May 3, 2010, 1 was appointed by Mayor Mitchell J. Landrieu to the
position of City Attorney for the City of New Orleans. My practice has
changed in many respects and expanded in depth and character. As the
City’s Chief Legal Officer, I am directly involved in the negotiation of all
major real estate transactions, cooperative endeavor agreements and other
property and tax related and collection and enforcement matters affecting
the City and which are largely considered transactional in nature, I am
also directly involved in litigation in state and federal courts defending the
City in claims ranging from civil rights and other constitutional violations
in federal court, to property damage and personal injury as well as appeals
from administrative decisions, in state court. I supervise the drafting of
city ordinances and city-wide provisions and enforce zoning and other
municipal regulatory law. I am directly involved in public records
requests and other freedom of information matters.

As the City’s chief prosecutor of municipal code and traffic violations, 1
am responsible for prosecuting 70% of all criminal charges filed in
Orleans Parish as well as the staffing and supervision of municipal and
traffic court prosecutors.

Finally, in situations when it is necessary to protect the City’s interest, we
serve as plaintiffs counsel on behalf of the City to pursue lost revenue,
exercise duly negotiated contract clauses, and seek compensation for
losses sustained by the City due to actions of others.

ii. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.

From 1988 and through 1 992, my typical clients were financial institutions
in foreclosures and other financial litigation matters, oil and gas
companies and various commercial businesses. I was also involved in
commercial litigation defending a variety of corporations and businesses
in complex litigation. Finally, 1 defended oil and chemical companies in
environmental and toxic tort litigation and in permitting matters.

From 1992 to 1994 I represented public interest and environmental groups
in environmental permitting matters, administrative rule making
procedures and in public hearings on the siting and permitting of regulated
facilities and in regulatory compliance matters.

30

495

During the remainder of my practice, until my most recent appointment, 1
have represented railroad companies in FELA litigation, public bodies in
environmental litigation and a variety of companies and business in
environmental and real estate matters, developers in land use and
construction- related disputes and other corporations and businesses in a
variety of business-related transactional and litigated matters ranging from
contractual disputes to personal injury to employment-related matters.

Currently, I represent governmental entities and political subdivisions;
specifically, the Mayor, City Council for the City of New Orleans, sixteen
departments and twenty-three Boards and Commissions, in a wide variety
of matters including drafting ordinances, collecting taxes, enforcing city
codes and ordinances, negotiating real estate transactions, defending
constitutional and civil rights matters, drafting, implementing and
enforcing policies, election and voting rights approvals and related issues,
defending the city in property and personal injury cases, workers’
compensation matters and a variety of other claims and disputes. I am
responsible for the prosecution of municipal and traffic matters.

c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, 01 not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.

My practice over the years has required me to appear in court frequently.

i. Indicate the percentage of your practice in:

1.

federal courts:

45%

2.

state courts of record:

45%

3.

other courts:

4.

administrative agencies:

10%

ii. Indicate the percentage of your practice in:

1.

civil proceedings:

75%

2.

criminal proceedings:

25%

d. State the number of cases in courts of record, including cases before

administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.

I have tried to verdict approximately 12 cases as chief counsel, and tried to
verdict, judgment or final decision approximately 40 as associate counsel.

i. What percentage of these trials were:

1. jury: 10%

2. non-jury: 90%

31

496

e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any
oral argument transcripts before the Supreme Court in connection with your
practice.

I have not practiced before the Supreme Court of the United States.

1 7. Litigation : Describe the ten (1 0) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give a capsule summary of
the substance of each case. Identity the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case:

a. the date of representation;

b. the name of the court and the name of the judge or judges before whom the case
was litigated; and

c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.

1 . Texaco Exploration v. AmClyde Engineered, USDC, Eastern District of
Louisiana, No. 2:99-cv-03623, filed 12/2/99; trial court judgment issued April
5, 2002. During what was the heaviest offshore lift of its time, McDermott
dropped Texaco’s Petronius Offshore Module, estimated at a loss of $500
million, into the Gulf of Mexico during the lift. Lloyd’s Register of Shipping
(“LR”), the oldest classification society in the world, had classed the vessel
and had surveyed it prior to the lift. I was co- counsel at trial; prior to trial, 1
handled all aspects of the case on a day-to-day basis including drafting and
editing all pleadings, memoranda and motions, arguing all motions before
Magistrate Judge Alma Chasez and taking depositions, including those of
experts. I also examined and cross-examined witnesses, and otherwise
presented evidence at trial. 1 made closing arguments (opening statements
were waived). We won a judgment in favor of LR and were also granted costs
after a six-week trial on the merits. Before an appeal was lodged, we settled.
The case was later retried against the remaining defendants. I was involved in
the representation from August 1 999 through trial and post-trial cost
assessment. The case was heard in U.S, District Court Eastern District of
Louisiana, Judge Ivan L.R. Lemeile.

My co-counsel were Kenneth Gordon, of Gordon Gordon and Schnapp, P.C.,
437 Madison Avenue, 39 lh Floor, New York, New York 1 0022, (212) 355-
3200; and Richard M. Leslie (retired), Shutts & Bowen, LLP, 100 South
Ashley Drive, Suite 1500 Tampa, Florida 33602, (813) 229-8900. Counsel

32

497

for Texaco Exploration and Production Inc. and Marathon OiJ Company was
S. Gene Fendler, Liskow and Lewis, 701 Poydras Street, Suite 5000, New
Orleans, Louisiana 70139, (504) 556-4122: Counsel for AmClyde Engineered
Products, Inc. was A. Kirk Gasperecz, Adams and Reese, L.L.P, 701 Poydras
Street, Suite 4500, New Orleans, Louisiana 70139, (504) 585-0408; Counsel
for Williamsport Wireworks Inc. and Lowry Brothers was David F.

Beinvenue, Simone, Peragine, Smith and Redfeam, L.L.P., 30 th Floor -
Entergy Centre, 1 100 Poydras Street, New Orleans, Louisiana 70163, (504)
569-2030.

2. Johnson v. Orleans Parish Sch. Bd , No 93-1 433 c/w 94-5446, 94-12996 and
95-13271, Civil District Court for the Parish of Orleans, filed 8/31/93. I was
lead counsel from 2002 to May 2010, representing Orleans Parish School
Board in this class action filed in 1 995 against the Board, the City of New
Orleans and the Housing Authority of New Orleans (“HANO”). The plaintiffs
alleged negligence in the closing of Agriculture Street Landfill, the
development of a neighborhood and the construction of Motion School on the
site of a former municipal solid waste landfill. Hundreds of millions of
dollars were claimed to be due residents, students and former employees of
the school (as the class had been certified prior to my involvement in the
case). I was successful in minimizing the liability of the School Board to a

SI 2,000 judgment in favor of the school class representative to be shared by
all three defendants, in solido, and only for damages due to emotional distress
for her fear of contracting cancer. All three defendants and insurers of the
Housing Authority appealed; the Fourth Circuit Court of Appeal found the
emotional distress damages to be excessive and reduced it by fifty per cent.
Judge Nadine Ramsey presided over the twenty-four day trial.

My co-counsel was Katherine Young, the associate on the file; she no longer
lives in Louisiana. (I have been unable to determine her current contact
information.) Counsel for plaintiffs was Joseph M. Bruno, Bruno & Bruno,
855 Baronne Street, New Orleans, Louisiana 70113, (504) 525-1353; Counsel
for Insurers was Marshall J. Simien Jr., The Simien Law Firm, 1 Lakeshore
Drive, #1110, Lake Charles, Louisiana 70629, (337) 497-0022.

3. Rathborne v. Exxon Mobil Corp. (2001-120 l.Div. N); Bailey v. Exxon Mobil
Corp. (2003-35, Div. B); Brown v. Exxon Mobil Corp., No. 01-12081, Civil
District Court for the Parish of Orleans, filed 7/25/01, prior to consolidation,
resolved while pending in Civil District Court for the Parish of Orleans, and in
various sections based on same successful exception. I represented the
primary insurers of Intracoastal Tubular, Inc., an oil field pipe cleaning
company, that worked for Exxon and other oil drilling companies in the
1970s. The case involved Technologically Enhanced Radioactive Material
(“TERM”) exposure and contamination to property and persons during pipe
cleaning operation as part of the oil drilling process. Although various venue
exceptions had been advanced prior to my entry into the litigation, 1

33

498

successfully achieved dismissal on a venue exception based on Louisiana
Direct Action statute and La. C.C.P. art. 42, providing leverage to settle the
case before plaintiffs would have to refile in the proper venue, which they
believed would not be as favorable to their case. [ was involved in this
litigation from 2005 to 2007.

Counsel for plaintiffs were Michael Stag and Catherine Cummins, Smith Stag
Attorneys at Law, 365 Canal Street, Suite 2850, New Orleans, Louisiana
70130, (504) 593-9600; Counsel for Exxon Mobil Corporation was Glen M.
Pilie, Adams and Reese, 701 Poydras Street, Suite 4500, New Orleans,
Louisiana 70139, (504) 581-3234; Counsel for North River Insurance
Company was David F. Bienvenue, Simone, Peragine, Smith and Redfeam,
L.L.P., 30* Floor - Entergy Centre, 1100 Poydras Street, New Orleans,
Louisiana 70163, (504) 569-2030; and Counsel for Grey Insurance Company
was Etienne Balart, Jones Walker, Waechter, Poitevent Carrere and Denegre,
L.L.P., 201 Saint Charles Avenue, New Orleans, Louisiana 701 70, (504) 582-
8000.

4. In re Shintech: Saint James Citizens for Jobs v. La. Stale Env 7 Quality Dep 7,
Case § C442229, 19 lh Judicial District Court for the Parish of East Baton
Rouge, filed 8/29/97; administrative matter before the Louisiana Department
of Environmental Quality. 1 was lead attorney in the representation of area
African-American businesses, local African-American elected officials and
the Louisiana Chapter of the National Association for the Advancement of
Colored People (NAACP), in support of permits applied for and ultimately
granted to Shintech Corp. to build a $700 million chemical manufacturing
plant in Convent, Louisiana, St. James Parish, and in subsequent litigation by
environmental organizations, as interveners, appealing the Louisiana
Department of Environmental Quality’s (LDEQ) decision to issue air permits
and local land use permits to Shintech. The United States Environmental
Protection Agency delayed issuance of the final and necessary water permit
while it considered a complaint of alleged civil rights violations made by
environmental organizations against the LDEQ regarding its processes for the
issuance of the permits. My clients did not intervene in the EPA procedure.
Due to the extensive delays, Shintech withdrew from the St. James project and
built a smaller plant in Plaquemines Parish. 1 was involved in the
representation from 1996 to 1998. The appeals from the permitting decisions
of the LDEQ were heard by the Honorable Janice Clark, Judge, Nineteenth
Judicial District Court, East Baton Rouge, Louisiana.

My co-counsel was James Diaz (retired), Onebane Law Firm, 1200 Camelia
Boulevard #300, Lafayette. Louisiana 70508, (337) 237-2660 (Mr. Diaz can
now be reached at: (337) 233-6200); Counsel for Shintech and its Affiliates
was Robert E. Holden, Liskow & Lewis, 701 Poydras Street, Suite 5000,

New Orleans, Louisiana 70139, (504) 581-7979; Counsel for Plaintiffs
(Interveners) were Robert Kuchn and Lisa Lavie Jordan, Tulane

34

499

Environmental Law Clinic, 6329 Freret Street, New Orleans, Louisiana
701 IS, (504) 865-5789; Counsel for Louisiana Department ofQualitv was
Meredith Hoag Lieux, P.O. Box 822, Baton Rouge, Louisiana 70884.

5. In Re Supplemental Fuels, Docket # AHD-HX-93054, State of Louisiana
Department of Environmental Quality, decision filed 1/24/94. Supplemental
Fuels, Inc. (“SFI”) sought permits from the Louisiana Department of
Environmental Quality (“LDEQ”), and sued when those permits were denied.
As a teaching fellow and staff attorney at the Tulane Environmental Law
Clinic, I was co-counsel in the representation of Neighbors Assisting
Neighbors (NAN), Louisiana Coalition for Tax Justice, and Louisiana
Environmental Action Network, in its successful efforts to prevent SFI from
receiving the permits to build a massive hazardous waste storage facility in the
Carrviile/St. Gabriel area, a predominantly African-American community that
was already home to ten large chemical plants. As part of the strategy to stop
the plant from being built, we filed the first administrative complaint under
Title VI of the Civil Rights Act of 1 964, as amended, with the United Stales
Environmental Protection Agency, alleging that the Act prohibits
discrimination on the basis of race, color or national origin in programs and
activities receiving federal financial assistance, and that the LDEQ had
demonstrated discrimination in the siting of facilities in African-American
communities and in how it treated those communities regarding notice of
hearings, production of public records requests and in other instances relating
to its processes in awarding permits. I was involved in the representation
from 1992 to January 1994, when the LDEQ denied the permits to SFI. Kai
Midboe was the Secretary of the Louisiana Department of Environmental
Quality and the ultimate agency decision maker.

My co-counsel was Robert Kuehn, now Professor of Law and Co-Director of
the Interdisciplinary Environmental Clinic, Washington University Law
School, One Brooking Drive, St. Louis, Missouri 63130, (314) 935-5706.
Counsel for SFI was William Treeby, Stone Pigman Walther Wittman and
Hutchinson, 546 Carondolet Street, New Orleans, Louisiana 70130, (504)
581-3200.

6. Alday v. CSX Transp., Inc., No 03-08 1 54 (N-8) Civil District Court of the Parish
of Orleans, filed 5/23/03. I represented CSX Railroad against a FELA claim
brought by a plaintiff who sought over S3 million in damages from injuries
sustained when a raiicar fell upon her. The plaintiff was the conductor and thus
had complete responsibility for the casualty and any alleged negligence that may
have occurred. We obtained a directed verdict for our client before the
Honorable Ethel Simms Julien, Judge.

My co-counsel was Brent Talbot, Chaft'e, McCall, LLP, 2300 Energy Centre,
1100 Poydras Street, New Orleans, Louisiana 70163, (504) 585-7000.

35

500

Plaintiff's counsel was Benjamin B. Saunders, Davies-Saunders Law Firm, 400
Mariners Plaza Drive, Suite 401 , Mandeville, Louisiana 70448, (985) S12-3070.

7. City of New Orleans v. BellSouth Telecomms., Inc. , 2:09-cv-00 151, USDC,
Eastern District of Louisiana. In May 2010, w'hen I began my tenure as City
Attorney for the City of New Orleans, this matter was already set for trial.

The case involves the question whether the City waived its right to charge a
franchise fee to BellSouth, now AT&T, because the City failed to come to an
agreement with BellSouth as to an alternative method of calculating the fee
pursuant to the terms of a prior settlement agreement. After being advised by
our transition team that the previous administration budgeted only $2 million
in expected settlement, we changed the strategy of the ease. I worked with the
Mayor to set out the negotiation strategy and drafted a mediation plan. I fully
participated in the mediation, orchestrating the Mayor’s participation,
identifying the interests of the parties and identifying the parties’ best
alternatives to a negotiated agreement. Although the case did not resolve in
mediation, the process allowed us to change the previous strategy of the case
to increase the City’s chances for a larger judgment. I directed the strategy,
made all decisions and participated in all negotiations associated with the trial
of the case. On November 15, 2010, Judge Eldon Fallon ruled in the City’s
favor, increasing the City’s recovery from the anticipated settlement of $2
million to an estimated $ 1 5 million in back payment and about a 3% per year
yield on a telecommunications fee.

Counsel for AT&T Services, Inc. is Carmen Sbindala Ditta, 365 Canal Street,
Suite 3060, New Orleans, Louisiana 70130, (504) 528-2003.

8. Gov ’t Computer Sales v. State of Louisiana , No. C44589; Nineteelh Judicial
Court, for the Parish of East Baton Rouge, filed 12/30/97. With me as lead
trial attorney, we successfully represented the lowest responsive bidder,
Logicom Systems, Inc., on a state computer hardware contract valued at more
than $3 million against challenges by another bidder.

My co-eounscl were Gerald L. Waiter, Jr., Taylor Porter Brooks Phillips, P.O.
Box 2471, Baton Rouge, Louisiana 70821, (225) 387-3221; Division of
Administration, Office of General Counsel, P.O. Box 94095, Baton Rouge,
Louisiana 70804; George John Grazioso, Louisiana Office of State
Purchasing, 1201 North Third Street, Suite 2-1 60, P.O. Box 94095, Baton
Rouge, Louisiana 70804. Opposing Counsel was Charles Patin, Jr., Kean,
Miller, Hawthorne, P.O. Box 3513, Baton Rouge, Louisiana 70821, (225)
387-0999.

9. Collins v. State of Louisiana, No. 237-93 1 , Criminal District Court for the
Parish of Orleans. I was appointed by Judge Calvin Johnson to represent an
inmate who had been in Angola State Penitentiary for thirty-two years, since
he was convicted of aggravated rape at age 17. Collins had been convicted

36

501

and sentenced by a jury to life in prison with benefit of parole. At the time his
sentence was imposed, however, Louisiana law had been changed to prohibit
parole when a life sentence had been imposed for aggravated rape. Collins
thus had been issued an illegal sentence under the law. I argued that under the
circumstances, the state should be ordered to arrange a parole hearing for
Collins, retry him, or release him. Judge Johnson ruled that Mr. Collins must
be released.

Opposing counsel was the Assistant District Attorney at the end of Harry
Connick’s term as District Attorney. I have been unable to determine
counsel’s name or contact information.

10. Fordv. Murphy Oil Co., 703 So. 2d 542 (La. 1997). I was a member of a
team of litigators defending Murphy Oil Company in a proposed class action
toxic tort arising out of explosion at the Murphy Oil Refinery in Cbalmette,
Louisiana and other continuing nuisance claims filed by neighboring
residents. I conducted research and drafted supporting memoranda and
pleadings and attended hearings. The case became a landmark decision in
Louisiana class action and environmental law.

My co-counsel were Samuel LeBlanc and Joel Borrello of Adams and Reese
(both now retired). Plaintiffs counsel were Sidney Torres, III and Roberta
Bums 8301 West Judge Perez Drive Suite 303, Chalmette, Louisiana 70043,
(504)271-8422.

18. Legal Activities : Describe the most significant legal activities you have pursued,

including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organizations) for whom you performed lobbying activities and describe
the lobbying activities you performed on behalf of such client(s) or organizations^).
(Note: As to any facts requested in this question, please omit any information protected
by the attorney-client privilege.)

1. Between June and July 2010, 1 represented the City of New Orleans, and with only a
30 day window before closing, renegotiated the purchase of Methodist Hospital in
New Orleans, down from $40 million dollars to $15.25 million fo save the tax payers
millions of recovery dollars that now can be used on other projects.

2. Lead negotiator for the City of New Orleans, in the renegotiation of three garbage
collections contracts entered into by the previous administration and extended during
transition into our administration. We expect that the newly negotiated contracts will
save the city several millions of dollars for the year 2011 and for the remainder of the
contract term. Not only did we negotiate a lower garbage collection price (as of this
date we have renegotiated all three collection contracts), the new lower price includes
recycling - a service the City of New Orleans has not been able to provide to its
citizens since before Hurricane Katrina, five years ago.

37

502

3. Member of a working group of Criminal Justice Leaders in the City of New Orleans
examining the reduction of the size of the jail as new construction is required due to
massive flooding damages sustained as a result of Hurricane Katrina.

4. In conjunction with the City Council Criminal Justice Committee, Criminal Justice
leaders, including me, offered amendments to the City Code that would make state
misdemeanor charges municipal violations, thereby freeing the police, the District
Attorney and the criminal courts to focus on more violent crimes. The amendments
were adopted by the New Orleans City Council on December 16, 2010.

5. Working with the United States Department of Justice to address systemic problems
in the New Orleans Police Department.

6. Lead Counsel, negotiator and strategist in civil rights actions filed against the City of
New Orleans as a result of alleged actions taken by police officers in the days
immediately following Hurricane Katrina.

7. As Director of Sanitation for the City of New Orleans from 1994 to 1996, 1 managed
the city’s department responsible for collection, transportation and disposal of
municipal solid waste, waste tire program, and started the City’s first curb-side
recycling program. I was responsible for enforcement of the City’s Sanitation code
and for putting closure plans in place for two solid waste disposal facilities owned or
operated by the city. Additionally, I was responsible for the supervisions of eight
departmental divisions consisting of 175 employees and an annual budget of $23
million and contractual commitments of over $100 million. I led negotiations with
regulatory bodies, drafted bid specifications and agreements, testified before
governmental bodies, drafted and negotiated contracts and was a consensus builder on
key environmental issues in the city.

8. From 2004 to 2010, 1 served on the Louisiana Attorney Disciplinary Board. During
this time, I served on hearing committees and participated in writing
recommendations of appropriate disciplinary action.

19. Teaching : What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.

1 992 - 1 994: Tulane Law School, Tulane Environmental Law Clinic, Teaching Fellow
This clinical course covered Environmental Law and Advocacy, Civil Procedure,
Administrative Procedure, Evidence, Professional Responsibility, and Trial Skills.
I do not have a copy of the syllabus.

1 998 - 2000: Southern University Law Center, Assistant Professor of Law. I do not
have copies of the syllabi for these courses.

38

503

Environmental Law and Toxic Tort - This course covered federal Clean Water

Act, Clean Air Act, Solid Waste Disposal Act or RCRA, CERCLA, NEPA
and other federal laws regulating pesticides and other toxins; it also
distinguished between environmental law and regulation and toxic tort
cases employing principals of negligence and property law and
environmental justice principals

Federal Civil Procedure was taught using the Rules of Federal Procedure and case
law applying the FRCP

Sale and Lease of Property was taught using the Louisiana Civil Code and case
law applying the Code

Professional Responsibility was taught using the Model Code of Professional
Conduct as a guide and casebook with case study examples and word
problems

Family Law was taught using the Louisiana Civil Code and casebook

Conflicts of Law was taught using casebook which provided guiding principles to
apply when deciding the laws of the case

2007 - 2009: Loyola Law School, Stuart H. Smith Law Clinic and Center for Social
Justice

Clinical Instruction was in the Mediation Section of the Law Clinic (Syllabus
supplied)

Mediation & Arbitration was taught with a casebook and interactive problem-
solving exercises (Syllabus supplied)

20. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest,

1 do not expect to receive any deferred income or future benefits from any sources of my
own income, other than retirement benefits.

21. Outside Commitments Purine Court Service : Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.

1 have no plans, commitments or other arrangements to pursue outside employment
during my service with the court should I be chosen to serve.

22. Sources of Income : List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding S500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1978, may he substituted here).

39

504

See attached Financial Disclosure Form.

23. Statement of Net Worth : Please complete the attached financial net worth statement in
detail (add schedules as called for).

See attached Net Worth Statement.

24. Potential Conflicts of Interest :

a. Identify the family members or other persons, parties, categories of litigation, and
financial arrangements that are likely to present potential conflicts-of-interest
when you first assume the position to which you have been nominated. Explain
how you would address any such conflict if it were to arise.

If I am confirmed, I would submit to the clerk of court a list of parties, interests
and financial arrangements that should trigger automatic recusal. Examples of
such matters would be those involving my husband, who is an attorney, the
company for which he works, and the City of New Orleans (my current employer)
for a specified amount of time. In addition, in an effort to identify other potential
conflicts of interest that are not apparent or known to me at the time of my
submitting a list of automatic recusals, I would review the general facts of each
assigned case and, guided by the principals embodied in Canon 3 of the Code of
Conduct for United States Judges, 28 U.S.C. § 455, and other applicable
provisions, I would make an initial determination as to whether a conflict of
interest exists.

b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.

I will follow the guidance embodied in Canon 3 of the Code of Conduct for
United States Judges, 28 U.S.C. § 455, and other applicable provisions.

25. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar
Association’s Code of Professional Responsibility calls for "every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving the disadvantaged.” Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.

There have been many times over the course of my career where I have devoted my
practice to serving those who would not otherwise have meaningful access to the legal
processes. Further, I have offered my services for reduced fee rates to governmental
entities and in other instances where parties were in some way disadvantaged and unable
to pay the full rate for my services. Moreover, the types of mediation services 1 have
provided in the past are aimed at providing a mechanism of conflict resolution to those
who are least able to otherwise engage in a process that would allow their concerns to be

40

505

heard because of the cost of such litigation and the scarcity of lawyers who could spend
such time on a resolution without compensation.

Finally, in the past I have readily offered pro bono advices to families with children with
learning differences to help them identify the available resources and empower them with
the knowledge of what services and accommodations are mandated in favor of their
children.

26. Selection Process :

a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
the interviews in which you participated). Is there a selection commission in your
jurisdiction to recommend candidates for nomination to the federal courts? If so,
please include that process in your description, as well as whether the commission
recommended your nomination. List the dates of all interviews or
communications you had with the White House staff or the Justice Department
regarding this nomination. Do not include any contacts with Federal Bureau of
Investigation personnel concerning your nomination.

I received a call last summer inviting me to participate in an informal interview
process established by Senator Mary Landrieu, conducted by a committee she
assembled to do her initial vetting. The interview occurred on August 7, 201 0.
Several weeks after the interview, I received a call from Senator Landrieu’s office
informing me that I had been recommended to her by the committee and to set up
a meeting with the Senator. On October 14, 2010, 1 met with Senator Landrieu to
discuss my background, experiences and interest in the position. On November 2,
2010, 1 received a call from Senator Landrieu informing me that she had chosen
to recommend me for consideration by President Barack Obama for appointment
as Judge to the United States District Court for the Eastern District of Louisiana

Since November 9, 2010, 1 have been in contact with pre-nomination officials at
the U.S. Department of Justice. On December 16, 2010, 1 interviewed with
attorneys from the White House Counsel’s Office and the Department of Justice
in Washington, DC. The President submitted my nomination to the Senate on
March 2, 20 11 .

b. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any currently pending or specific case, legal issue or question
in a manner that could reasonably be interpreted as seeking any express or
implied assurances concerning your position on such case, issue, or question? If
so, explain fully.

No.

41

A&10

506

FINANCIAL DISCLOSURE REPORT
NOMINATION FILING

'Heport Required by die Ethics
in Government Art of )97&
(5 USC. app. §§ IQl-W)

I- Prtrsoa fUportfBg (but nime, firs, middle ati«3)

2. Court at Orpuuntioa

3.D*It oflUpar*

Wtveile Brown. NbhhcHc V.

U.S, District Court. EnUcru District of Louuuani

03/100011

4. Title (Article UT judges iadkatr active or *«J(Qf ttwa;

nagisbia judges iwEtiio fall- or part-trow)

5a, Report Type (cicci tppreptiate type)

$. Reporting Period

U& District Judge

pi] Nciciwrion.
j j hi till

Doe 03/02/2011

| [ .Annual ]"* "| Final

01/J/2010

to

3/KV2D1 J

7. Clumber* or Offlce Addresi

Law Department
City of New Orierct
1300 Perdido Scnxt, Suite 5E03
New Orleans. Lorasisna. 701)2

la*. Q Aocaflfll Report

8, Oa tS»e basis of the information cnatsioed ta this Report and any
□KNUGeatiaBi pertaining thereto. It i% In m 70 pSaa)O,in cocaplbuK*
*ith applicable Laws »n 3 ressJaiiora.

fMPOR TANT NOTES: Tke bisirHctumi accompanying this form Must hefoOovtd. Complete ail ports,
checking she NOSE box for each part vhrre yoa havt no nportaNe Informaovn. Sign on lastpugc.

L POSITIONS. rB^f^nbtg Ih&v*S*jiJ eniy,- tMfip. f-I) of ptl*£ tnrtiraafoncj
[ | NONE (No reportable positions.)

POSITION

J. Director

Federal Bar Association, New Orleans Chapter

1

II. AGREEMENTS. {Kepajithg bt/hAduol o*frr srd PP- lt-l& itf/SMg batrtctianJO

\y\ NONE (No reportable: agreements.)

DATE PARTIES AND TERMS

1 .

507

financial disclosure report

Name of Penan ReparS.'ig

Ostebn&port

Page 2 of 6

Jolfvrfte Brown, Ntnnette V.

oinuaou

m. NON-INVESTMENT INCOME. (Reporting Inil fiiaat and tpoase; *aj&. J7-14 oj fifing tnttnalemj

A. Filer's Non-Investment Income

|_ | NONE (No reportable nan-hrv&stmeni income.)

DATE SOURCE ANIUYF3B INC O ME

(youra, not spouse's)

1, 2011 (YTD) City of New Oricau3-4^Ky $28,984.50

2.2030

City of New Orfcsoi-safciry

$88,484.09

3.2010

Chafft, MeCalL LLP-tttay

*41,666.(54

4.200?

Chaffe, McCall. LLP-alary

$46,866.64

5.2009

Loyoh Urrivcrafry-seliry

$55^3225

II. Spouse’s Non-llivestnicnt Income - tfyo o was marrtad during avpw* 1 */ thnr^n>niugyeat, armjd&e this section.

(DoMtr antnunl not rtqvietd Kicxplfirr kamreriaj

[ | NONE (No reportable /lon-mvejrmen/ income.)

DATE SOURCE AND TYPE

1.2011 Hnnxgy Services, Inc.-sai«ry

2.2010

Entergy Sctvicct, Iac.-«aliry

3.

4.

IV « REIMBURSEMENTS — traniportatioa, lodging, /bed. rnttmalrwuM.

fftcAido *w ns rpourt and dspamhnt cM&tn; se*Pf* 2 }-i 7 nf/BSag hotmetiont)

NONE (No reportable reimbursements.)

SOURCE PATES LOCATOR

PURPOSR

1. Exempt

508

FINANCIAL DISCI XDSURE REPORT
Page 3 of 6

NasacofPcT&iuKqrortlsg - ' j

Jalfvdtc Brorm, NtnaeMc V.

DsiwrEitJW - -

03/10/2011

V. GIFTS. (ImJada thus* m spaasr a/id dependent c/riJirtA; rtrpf. 2A-31 afJtUng intmetism.}

| | NONE (No reportable gifts.)

SOURCE

DESCFIPTfON

VALUE

{, Exompf

VL LIABILITIES. (ImIu J a rtfav ofspomt and dependent cAJaSm,- ** pp. 32-33 ofJBbg inttnOaiaJ
| | NONE (No reportable liabilities.)

CREDITOR DESCRIPTION VALUE COPE

I. U.S. Department ef E<fueation

StJuk-tULaao

K.

509

FINANCIAL DISCLOSURE REPORT

>Mttt)toffer*»air*portIag '

< »«i of Rttwrf’*' ''

Page 4 of 6

JcliveUc BrtrrfD, NaonrttB V.

03/iJWon

VH. INVESTMENTS fllld TRUSTS — kte&actiatiie,*vna>aia>*(htelM£rtt}vUtofij6its*/imidipaiJ£ittMtdraa;*txpp. 3^-60 of fiEafhatrmavia^

| j NONE (No reportable income, assets, or transactions.)

A.

Deacripikmaf And*

(indodk* mst aisals)

»

Income dnrhg
reporonp. pekni

C -

OouvCdc tt end

of reporting paScd

D.

Tnmiscriciw during repotting pal od

Piice ’fXl* ofleresih amei
exempt fitfD piKT disclosure

0)

Amount
Code 1
(A-H)

GO

Tjpfl (««-.
div, rerd,
or ini)

0)

V*h»

Code 2
(f-P)

(2)
Vdw
Mahod
Cot 3
£ q-w)

(')

1>P« (o.fr,
Wp,*U,

latemptioa)

<3>

Dole

tnsaKMrt

0)
Vahu
Code 2
(3-P)

(4)

Geia

Code 1
(MI)

(5)

Identity of
buyetfe [kr
fifprivmir
trw union)

1. Entergy Conun on. Slock

Nona

J

T

E “” p '

2, US. Saving* Bondi

Kone

K

I

3. Rfvcflftnt! Credit Union Cbcciong and

Money MaAct

H

L

T

4. Fuji H«nk ant) Trust CtlocKog Aoocrtml

A

Inlcrcsf

I

T

5.

6.

1.

a.

9-

JO.

11.

12.

13,

14

15.

■

16.

■

■

17.

■ ■

■

I, (wwns CUir Cc*fc>:

fSm MinmBl md!M)
LVihuCodu
|Sn Cl+ctu Cl «od QJ)

A =51,(00 or k»»

F-LSUO! -EloOtMO
J-liJ.aXlM Un

H-CUdDM'SHO/Md
n -asjxtflto - ssojxomq
Q-Appniiii
U-flociVatae

B =$ 1,00 »-XM»
0-5100JW -$1,000,000
K-5ISJK1 - *50.000
o-sjcc.oai-si,ca;5CM

C“O»l-SUM0 D-iU»l -$!*,«» B-315,001-«O.K»

Hl<l.CO0,»i-JSy»0£S0 Hj - Mart dwtt.COC ,000

-SlCrVO) M-3I00JXI -SIW^CO

pi -11,000,001 -j5.ooo.ooti n-tsscasat -$rsfuittx>

rs -M»» Ttan jsjjwwoo

J. Value Mated CdAh
(S*c D*I»aO C)

E -Call {R*ii E*na OJy)

T-C*AMirfcrt

510

FINANCIAL DISCLOSURE MPORT w
Page 5 of 6

Naaie of ?er*>e Reporting ’ -w-** ■ '

Jolivette Bnrwo, Nannane V.

■ E»U *f f&qfort ■‘•WS

03/10/2011

VII L ADDITIONAL INFORMATION OR EXPLANATIONS,

FINANCIAL DISCtOSliRE REPORT
Page 6 of 6

Nome of Pimju R epordag "" ' ” Vr ‘"

JoBvertt Brows, Ntnoerte V.

" “ natedTRepok

03/1W2011

DC CERTIFICATION.

I certify that an inJornmCScn gwro above (Including Informuinn pcrubdag to my apowe and minor or dependent children, if any) «s
accurate, true, and comp kit to the hat of my knontrdgc aud btCef, mud that may information not reported mi withheld because it mot applicable statutory
promJnai permitting uan-dltdrttnrc.

I farther certify that earned Income from oo tride employment and honoraria and the acceptance of gifts which have been reported art in
compliance vrilh the pravfihmi of 5 U.S.C app. J 5fll ct_ to)-, 5 1I-S-C. § 73 53, and Judicial Conference rcRuJaflonj.

NOTE; ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OH FAILS TO RLE THIS REPORT MAY BE SUBJECT TO CIVIL
AND CRIMINAL SANCTIONS (S US.C »pp- § I W)

HUNG INSTRUCTIONS

Mail signed original and 3 additional copies to:

Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301

One Cotaiobus Clide, NJE.

Washington, D.C. 20544

511

FINANCIAL STATEMENT
NET WORTH

Provide a complete, current financial net worth statement which itemizes in detail all assets (including hank
accounts, real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts,
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate members of your
household.

512

FINANCIAL STATEMENT
NET WORTH SCHEDULES

Real Estate Mortgages Payable
Personal residence
Home equity line of credit

Total Real Estate Mortgages Payable

$ 893,000
132,000
S 1,025,000

AFFIDAVIT

j ( Nannette Jolivette Brown swear

that the information provided in this statement is, to the best
of my knowledge, true and accurate.

LVhil 2

/ (NOTARY) [X

UTZLj

D&urv-) t- Sd

513

CITY OF NEW ORLEANS
LAW DEPARTMENT

1300 PERDIDO STREET, 5™ FLOOR EAST
NEW ORLEANS, LOUISIANA 70112
TELEPHONE: (504) 658-9800
TELECOPIER; (504)658-9868

MITCHELL J. LANDRIEU
MAYOR

N’ANNETTE jOUVTTTE BROWN
CITY ATTORNEY

March 31, 2011

The Honorable Patrick J. Leahy
Chairman

Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, DC 205 1 0

Dear Senator Leahy:

In connection with my nomination to be United States District Judge for the Eastern District of
Louisiana, enclosed please find a DVD containing news clippings of press conferences held
regarding traffic camera litigation and the re-negotiation of Methodist Hospital in New Orleans
tor which I provided comment Although I requested these recordings prior to submission of my
Senate Judiciary Questionnaire, they were only made available to me after the questionnaire was
submitted. Thank you in advance for your consideration and please feel free to contact me with
any questions.

Cc: Honorable Charles E. Grassley

AN EQUAL OPPORTUNITY EMPLOYER

514

Senator COONS. Thank you, Ms. Brown.

Mr. Kuntz.

STATEMENT OF WILLIAM F. KUNTZ II, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK

Mr. Kuntz. Thank you very much, Mr. Chairman, and thank you
so much, Senator Grassley, for being here. Can you hear me now?

Can you hear me now?

Senator Coons. Yes.

Mr. Kuntz. Thank you.

Senator Coons. Thank you.

Mr. Kuntz. Not my usual problem. I apologize. Mr. Chairman
and members of the Committee, I too would like to thank President
Obama for nominating me, and I would like to thank Senator Schu-
mer for recommending me to this august Committee.

I am pleased and honored to introduce to you today my wife of
33 years, Dr. Alice Beal, who is the director of palliative care for
the Veterans Administration of the New York Harbor System, who
is here today. I would also like to introduce my daughter, Kath-
arine Lowell Kuntz, who is completing her second year at Tufts
Medical School, the school attended by her mother. My wife’s cous-
in and best friend, Alletta Belin, who is a distinguished environ-
mental attorney now working with great distinction in the Depart-
ment of the Interior, is here today. And, finally, Mr. Joel Motley,
who is president of Motley Communications and a friend since col-
lege and law school. Joel first introduced me to his parents, Joel,
Sr., and the Honorable Constance Baker Motley, more than 30
years ago. He has been a friend and an inspiration throughout my
adult life.

Our other two children, William Thaddeus and Elizabeth Ann,
apologize for not being here today. Will is the assistant director of
professional scouting for the New York Yankees and is taking his
law school exams at the night division at Fordham. And Lizzie is
completing her final set of exams and papers today and is sched-
uled to graduate from Harvard College later this month.

I thank you so very much for this opportunity to appear before
you today. My parents are both deceased, but I am sure they are
with us in spirit today, and I thank you so much.

[The biographical information of Mr. Kuntz follows:]

515

UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY

QUESTIONNAIRE POR JUDICIAL NOMINEES

PUBLIC

1. Name : State fiill name (include any former names used).

William Francis Kuntz, II

2. Position : State the position for which you have been nominated.

United States District Judge for the Eastern District of New York

3. Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.

Baker Hostetler, LLP
45 Rockefeller Plaza
New York, New York 10111

4. Birthplace : State year and place of birth.

1950; New York, New York

5. Education : List in reverse chronological order each college, law school, or any other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.

1 972 - 1 979; Harvard University, joint program with the Graduate School of Arts and
Sciences and the Harvard Law School; J.D., 1 977; Ph.D., 1 979

1972 — 1974; Harvard University Graduate School of Arts and Sciences, M.A., 1974

1968 - 1972; Harvard College, A.B., 1972

6. Employment Record : List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation
from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.

516

2005 — Present
Baker Hostetler LLP
45 Rockefeller Plaza
New York, New York 10111
Partner

2004-2005

Constantine Cannon (now Constantine Abom)
450 Lexington Avenue
New York, New York 10017
Of Counsel

2001 - 2004

Torys LLP

237 Park Avenue

New York, New York 10017

Partner

1994-2001
Seward & Kissel, LLP
One Battery Park Plaza
New York, New York 1 0004
Partner

1986- 1994

Milgrim Thomajan Jacobs & Lee
405 Lexington Avenue
New York, New York 10005
Partner

1987- 2003
Brooklyn Law School
250 Joraiemon Street
Brooklyn, New York 11201
Associate Professor of Law (Adjunct)

1978-1986
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Associate

2

517

1972-1978

Harvard University Graduate School of Arts and Sciences
1350 Massachusetts Avenue
Cambridge, Massachusetts 02138
Tutor

Summer 1976

United States Attorney for the Southern District of New York
One Saint Andrew’s Plaza
New York, New York 10007
Summer intern

Summers 1974, 1975
Children’s Defense Fund
25 East Street, NW
Washington, D.C. 20001
Summer Intern

Summer 1973
Harvard University
Eliot House

Cambridge, Massachusetts 02138
Assistant Senior Tutor

Summer 1972
Harvard University
Cambridge, Massachusetts 021 38
Summer Assistant to the Dean of Students

Ot her Affiliations ('uncompensated except as noted!:

2004 - present

The Brooklyn Hospital Center
121 DefCalb Avenue
Brooklyn, New York 1 1201
Board of Directors

2003 - present

Federal Bar Council and Federal Bar Foundation
123 Main Street, Suite L100
White Plains, New York 1 060 1
Vice President (Council) (2004 - 2009)

Director (Foundation) (1 993 - 1 996; 2003 - 2004)

Secretary (Foundation) (1996-1999)

3

518

2002 - present

New York Lawyers for the Public Interest
151 West 30 lh Street, 1 1* Floor
New York, New York 1 0001
Director Emeritus (2010 - present)

Board of Directors (2002 - 2009)

2001 - present

The Academy of Political Science
1527 New Hampshire Avenue, NW
Washington, DC 20036
Board of Directors (2001 -present)

General Counsel (2004 - present)

1 997 - present

Lawyers’ Committee for Civil Rights Under Law
1401 New York Avenue NW, Suite 400
Washington, DC 20005
Board of Trustees

1996 -present
The Practising Law Institute
810 Seventh Avenue, 2 1 st Floor
New York, New York 10019
Board of Directors (1996 - present)

Chair, Executive Committee of the Board of Directors (2006 - present)
2005-2010

The Legal Aid Society of New York
199 Water Street
New York, New York 10038
Board of Directors

1987-2010

Civilian Complaint Review Board of the City of New York

40 Rector Street

New York, New York 10006

Commissioner (received per diem)

2005-2008

Association of the Bar of the City of New York
42 West 44th Street
New York, New York 10036
Vice President (2006 - 2008)

Chair of the Executive Committee (2005 - 2006)

4

519

1997-1999

New York City Transit Museum
130 Livingston Street, lO" 1 Floor
Brooklyn, New York 11201
Board of Directors

1994-1997

Brooklyn Navy Yard Development Corporation
Building 292

63 Flushing Avenue, Unit 300
Brooklyn, New York 11 205
Board of Directors

1991 - 1996

New York County Lawyers Association
14 Vesey Street
New York, New York 10007
Board of Directors

7. Military Service and Draft Status : Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.

I have not served in the military. I registered for selective service.

8. Honors and Awards : List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.

The Tribune Society Distinguished Service Award (201 1)

New York Super Lawyers (2006 - 20 10)

Volunteer Lawyers Project of the Brooklyn Bar Association, Leadership Award (2008)
Graduate Prize Fellowship, Harvard University

9. Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.

Advisory Committee on Civil Practice in The State of New York (1997 - 2010)

Advisory Council of Chief Judge Jonathan Lippman to The Attorney Emeritus Program
(2010 - present)

American Bar Association (1979 - present)

American Bar Foundation (2009 - present)

5

520

American Law Institute (2000 - 2010)

Association of the Bar of the City of New York
Vice President (2006 - 2008)

Chair, Executive Committee (2005 - 2006)

Member, Executive Committee (2004 - 2008)

Chair, Municipal Affairs Committee (1992 - 1993)

Brooklyn Bar Association

Committee on the Judiciary (2002 — 2010)

Commercial Courts Task Force (1995 - 1999)

Departmental Disciplinary Committee of the New York State Supreme Court, Appellate
Division, First Department (2001 - present)

Policy Committee (2005 - present)

Federal Bar Council and Federal Bar Council Foundation
Vice President (Council) (2004 - 2009)

Director (Foundation) (1993 - 1996; 2003 - 2004)

Secretary (Foundation) (1996— 1999)

Executive Committee (2007 - present)

Awards Committee (2004 - 2006; 2009 - present)

Special Committee on Prison Reform (2009 - 201 1)

Winter Bench & Bar Planning Committee (2004 - 201 1)

Chair (2008 -2009)

Nominating Committee (2005 - 2008)

Membership Committee (2003 - 2006)

Fund for Modem Courts

John J. McCloy Memorial Award Event Committee (2002 - 2003)

Lawyers’ Committee for Civil Rights Under Law
Board of Trustees (1997 - present)

Legal Aid Society ofNew York

Board of Directors (2005 - 2010)

Magistrate Judge Selection Committee for the Eastern District ofNew York (2000 -
2004)

Magistrate Judge Selection Committee for the Southern District ofNew York (2008 -

2010)

Metropolitan Black Bar Association (2008 - present)

National Bar Association (2008 - present)

New York County Lawyers Association
Board of Directors (1991 - 1996)

New York County Lawyers Foundation (2004 — 2010)

New York Lawyers for the Public Interest
Director Emeritus (2010 - present)

Board of Directors (2002 — 2009)

The Practising Law Institute

Board of Directors (1996 present)

Chair, Executive Committee of the Board of Directors (2006 - present)

6

521

10. Bar and Court Admission :

a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.

New York, 1978

There has been no lapse in membership.

b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
in membership. Give the same information for administrative bodies that require
special admission to practice.

United States Court of Appeals for the Second Circuit (1 992)

United States Court of Appeals for the Third Circuit (1983)

United States Court of Appeals for the Tenth Circuit (1 985)

United States District Court for the Southern District of New York (1978)

United States District Court for the Eastern District of New York (1979)

There has been no lapse in membership.

1 1. Memberships :

a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 10 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership or participation, and indicate any office you held.
Include clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.

The Academy of Political Science

Board of Directors (2001 - present)

General Counsel (2004 - present)

Brooklyn Friends School

Board of Trustees (2005 - 2008)

The Brooklyn Hospital Center

Board of Directors (2004 — present)

The Brooklyn Navy Yard Development Corporation
Board of Directors (1994 - 1997)

The Feerick Center for Social Justice and Dispute Resolution at The Fordham
University School of Law (2006 - present)

New York City Transit Museum

Board of Directors (1997 - 1999)

7

522

b. The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion, or national
origin. Indicate whether any of these organizations listed in response to 1 la above
currently discriminate or formerly discriminated on the basis of race, sex, religion
or national origin either through formal membership requirements or the practical
implementation of membership policies. If so, describe any action you have taken
to change these policies and practices.

To the best of my knowledge, none of the listed organizations above presently
engages or formerly engaged in discrimination of any kind.

12. Published Writings and Public Statements :

a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Supply four (4) copies of all published
material to the Committee.

Werner L. Polak and William F. Kuntz II, Report of the Chair of the Board of
Trustees and Chair of the Executive Committee , Practising Law Institute Annual
Report, 2009. Copy supplied.

Gerald Walpin & William Francis Kuntz II, In Defense of a Judge, Nat’l L.J.,

Nov. 24, 2008. Copy supplied.

Civilian Complaint Review Board Policy Change Grossly Unfair lo Police
Officers, Staten Island Advance, Oct. 21, 2007. Copy supplied.

Comment under an on-line article entitled. Only Mel Weiss Can Save Milberg
Weiss Now, CNNMoney.com, July 10, 2007. Copy supplied.

Referees and Special Masters Chapter 30 in Commercial Litigation in New York
State Courts . Second Edition, Thompson West, 2005 through present with
supplement pocket parts. Copy supplied.

Taking & Defending Depositions in Commercial Cases, Practising Law Institute
Course Handbook, June 1998, reprinted in identical form in 1999, 2000 and 2001.
Copy of the 1998 version supplied.

Preparing and Conducting Opening and Closing Arguments: Case Analysis and
Theory Development, Practising Law Institute Course Handbook, August 1 8,

1993. Copy supplied.

8

523

Criminal Sentencing in \jm± Nineteenth Century Cities: A Social History of
Punishment in New York, Boston, an d Philadelphia, 1 830-18S0 (Garland Press,
1988). Copy supplied.

Reviewing the Reviewers , The Crimson, Jan. 15, 1974. Copy supplied.

I performed research for Marian Wright Edelman’s publication, Children Out of
School in America (The Children’s Defense Fund, 1974), but I did not take part in
writing the report.

b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum oi policy statement, give the
name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.

In 2009, 1 co-chaired the Subcommittee on Addressing Inadequate Representation
of the Study Group on Immigrant Representation. A member of the
subcommittee, Careen Shannon, wrote a report on behalf of the entire
subcommittee entitled. Regulating Immigration Legal Service Providers:
Inadequate Representation and Notario Fraud. A copy of the report is supplied.

In 2007, 1 participated in an Education Working Group as part of the The Pipeline
Crisis’s initiative Winning Strategies for Young Black Men. A copy of the report
is supplied.

In 2005, white 1 was serving as chair of the Executive Committee of the New
York City Bar Association, the Committee reported that then-judge Samuel Alito
was qualified to serve as a Supreme Court Justice. A copy of the press release of
the announcement is supplied.

In January 2004, while 1 was serving as a member of the Unified Court System of
New York’s Advisory Committee on Civil Practice, the committee released a
report to the Chief Administrative Judge of the Courts of the State of New York.

A copy of the report is supplied.

In 1997, 1 co-chaired the Subcommittee on the Profile of the Courthouse and its
Users of the Race and Ethnicity Committee of the Second Circuit Task Force on
Gender, Racial and Ethnic Fairness in the Courts. Based on the work of all the
committees, the committee chairs then created a report entitled. Report of the
Working Committees to the Second Circuit Task Force on Gender, Racial and
Ethnic Fairness in the Courts. A copy of the report is supplied. The Task Force
also released a final report based on all findings and reports; this report was
entitled, Report of the Second Circuit Task Force on Gender , Racial and Ethnic
Fairness in the Courts. A copy of the report is supplied. While I did participate

9

524

in discussions and meetings as co-ehair of the Subcommittee, I did not directly
contribute to the writing of either of these reports.

Civilian Complaint Review Board

From October 1987 to 20) 0, as a Commissioner on the Civilian Complaint
Review Board, I have contributed to reports concerning the activities of the
Board. These reports are listed below. Unless indicated below, copies of reports
are available on-line at http://wTAw.nyc.aov/html/ccrb/html/reports.htrnl .

Recommendation to retrain officers patrolling buildings owned by the New York
City Housing Authority as outlined in October 27, 2010 Press Release.

Recommendation to Issue Order Regarding Proper Handling of Police Union
“Courtesy” Cards, Nnv. 9, 2006.

Recommendation to Improve Training for Policing Demonstrations, May 9, 2006.

Recommendation that the NYPD Enhance Training Regarding Strip Search
Procedures, May 12, 2004.

Recommendation to Show “No-Knock” Search Warrants upon Request, Nov. 20,
2003.

Recommendation to Institute Measures to Facilitate Identification of Subject
Officers at Demonstrations, Feb. 15, 2003.

Recommendation that the New York City Police Department Create Search
Warrant Database, Jan. 2003.

Recommendation about Officer Refusal to Provide Name and/or Shield Number,
2003.

CCRB Street Stop Encounter Report, June 2001 .

75 lh - 81 sl Precinct Study, Aug. 1 1, 1998.

Hollow-Point Bullet Report, July 8, 1998.

Analysis of Arrest Situations Resulting in Civilian Complaints, Dec. 1992. Copy
supplied.

Nationwide Survey of Civilian Complaint Systems, Sept. 1 992. Copy supplied.

Final Report on the Tompkins Square Park Incident, Apr. 10, 1989. Copy
supplied.

10

525

Report of the Civilian Complaint Review Board, Oct. 1 987 - Dec. 1989. Copy
supplied.

CCRR Annual Reports, 1988 to 2009. Reports issued in 2001 and after are
available at the above web site. Copies of reports issued prior to 2001 arc
supplied.

CCRB Mid-Year Status Reports, 1994 to 2010. Reports issued after 2002 are
available at the above web site. Copies of reports issued prior to 2002 are
supplied.

c. Supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.

In 2008, 1 signed a petition to the Regents of the University of the State of New
York in support of a provisional charter for Brooklyn Friends School. A copy of
the petition is supplied.

On October 3, 1 992, 1 testified in my capacity as a former CCRB member before
the New York City Council Public Safety Committee about a proposed
referendum on removing Police Department employees from the CCRB. I have
been unable to obtain a transcript or recording, but press coverage is supplied.

On October 31,1 988, 1 testified in my capacity as a member of the CCRB during
a hearing held by Brooklyn Borough President Howard Golden. The hearing
examined the functions and operations of the CCRB. I have been unable to obtain
a transcript or recording, but press coverage is supplied.

d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by you, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk. If you do not have a copy of the speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.
If you did not speak from a prepared text, furnish a copy of any outline or notes
from which you spoke.

Practising Law Institute

I have taught as a faculty member of the Practising Law Institute on several of its
panels. Below is a list of my speaking events that I was able to identify. I do not
have notes, transcripts or recordings for all events and have indicated where I

11

526

have materials. T tie address of the PLI is 810 Seventh Avenue, New York, New
York 10019.

July 2009: Ethics in Context.

October 7, 2008: “The Deadly Dozen: 12 of the Most Common Mistakes Lawyers
Make When Dealing with Clients," Bridge the Gap I: Ethics and Skills for
Newly Admitted Attorneys 2008. Video supplied.

July 30, 2008 and August 8, 2006: Ethics for Commercial Litigation.

Other Events

February 24, 2011: Distinguished Service Award recipient, Black Jlistory Month
Program and Reception, New York State Unified Court System. Remarks
supplied.

June 16, 2010: Remarks at induction of Denny Chin, Circuit Judge for the U.S.
Court of Appeals for the Second Circuit. Remarks supplied.

July 22-24, 2009: Lecture, New York State Judicial Conference on Legal Ethics,
showing the film Judgment at Nuremberg and leading a two day discussion on the
role of judges and lawyers in the criminal regime of Nazi Germany. I have no
notes, transcript or recording. The conference itself does not have a physical
address, but the address of the New York State Unified Court System is Office of
Court Administration, Room 852, 25 Beaver Street, New York, New York 1 0004.

June 1 7, 2009: Introduced Judge Theodore T. Jones, Brooklyn Bar Association
Volunteer Lawyers Project Award Ceremony. I have no notes, transcript or
recording. The address of the Brooklyn Bar is 123 Remsen Street, Brooklyn,

New York 11201.

March 1 1, 2009: Presenter, Subcommittee work on “Addressing Inadequate
Representation,” Fordham Levine Forum. I have no notes, transcript or
recording, hut a copy of the report on which my presentation was based is
supplied in response to 12(b).

June 5, 2008: Award recipient, Brooklyn Bat Association Volunteer Lawyers
Project, remarks on civil Legal services. I have no notes, transcript or recording,
but Brooklyn Bar coverage is supplied. The address of the Brooklyn Bar is 123
Remsen Street, Brooklyn, New York 1 1201.

July 13, 2007: Co-presenter, Education Working Group Report, Winning
Strategies for Young Black Men, The Pipeline Crisis Second Plenary Session. I
have no notes, transcript or recording, but a copy of the report on which my
presentation was based is supplied in response to 12(b).

12

527

October 2006: Mock Supreme Court argument, Office of the Appellate Defender.

I have no notes, transcript or recording. The address of the Office of the
Appellate Defender is 1 1 Park Place, Suite 1601, New York, New York 10007.

Summer 2006; Judge, Mock Trial with Baker Hostetler summer associates. I
have no notes, transcript or recording. The address for Baker Hostetler is 45
Rockefeller Plaza, 1 1 th Floor, New York, New York 101 1 1.

December 13, 2005: Remembrance of Hon. Constance Baker Motley, New York
County Lawyers Association Annual Dinner. A copy of my remarks is supplied.

October 5, 1998: Mock Supreme Court argument, Office of the Appellate
Defender. I have no notes, transcript or recording. The address of the Office of
the Appellate Defender is 11 Park Place, Suite 1601, New York, New York
10007.

April 15, 1998: Panelist, “Police Violence: Causes and Cures,” Brooklyn Law
School. A transcript of my remarks is supplied.

August 25, 1988: Public meeting with residents of Tompkins Square Park, St.
Brigid’s School, discussed role of Civilian Complaint Review Board in the
investigation of police conduct during demonstrations in the Tompkins Square
neighborhood l have no notes, transcript or recording. The address of the CCRB
is 40 Rector Street, New York, New York 10006.

e. List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.

Sam Stanton, Newsmaker/Gerald Walpin, Ex-Inspector Genera!, Sacramento Bee,
July 12, 2009. Copy supplied.

Noeleen G. Walder, Local Attorneys Support Walpin, Watchdog Dismissed by
Obama , New York Law Journal, July 1, 2009. Copy supplied.

Interview Taped on January 23, 2009 with Professor Douglas Muzzio, Political
Analyst, City Talk on CUNY TV, Professor School of Public Affairs, Baruch
College/CUNY. Video available at

http://www.cunv.tv/series/citvtalk, / li5ten.lasso?-database=CUNYPROG& -

resnonse=detail2.Iasso&-table=webproedetail2&-sortField=TapeDate&~

sortOideT=descending&-op=ea&SeriesTitIe=Citv%20Talk&-

QD=neu&MediaAvailable= ! %3d%3d&-oD=lte&TapeDate-l 2%2f3 1 %2f2009&-

OP=gte&TapeDate-l%2fl%2f2009&-maxRecords-l&-skH>Records=32&-

search.

13

528

Christine Hauser, Complain; Board Lawyers Will Assisi at Police Trials , New
York Times, Sept. 1 1 , 2008. Copy supplied,

Lynn E. Judell, First-Year Associates; Yov Can't Beat Pro Bono , New York Law
Journal Magazine, Sept. 2008. Copy supplied.

Member Profile , New York County Lawyer, Sept. 2007. Copy supplied.

Jaime Adame, Questioning Police Statistics for Crime and Cases of Misconduct ,
Gotham Gazette, Apr. 4, 2005. Copy supplied.

Daniel J. Wakin, Gibson ’s Movie Goes to Church, New York Times, Apr. 9,
2004. Copy supplied.

William K. Rashbaum, Police Abuse Cases Rising, Complaint Review Board
Says , New York Times, June 3, 2003. Copy supplied.

Thomas Adcock, Law Firm Consortium Grapples with Diversity, New York Law
Journal, June 7, 2002. Copy supplied.

Jane Gross, Public Lives; Looking for a Line the Police Shouldn 7 Cross, New
York Times, Jan. 2, 200 1 . Copy supplied.

Douglas Montero, Lost Paperwork & Lost Trust, New York Post, Dec. 18, 2000.
Copy supplied.

Wil liam K. Rashbaum , Safir Says Civil ion Panel Exceeds its A uthority in Citing
Officers for Lying , New York Times, Jan. 8, 2000. Copy supplied.

Jodi Wilgoren, Federal Inquiry of Police Draws Mixed Reaction, New York
Times, July 11, 1 999. Copy supplied.

William K. Rashbaum, CCRB Memo Set City Auditing Lost Cases, New York
Daily News, Nov. 21, 1 998. Copy supplied.

Mark Fazlollah, Audit: N. Y. Police Panel Lei Misconduct Cases Lapse,
Philadelphia Inquirer, Sept. 3, 1998. Copy supplied.

Michael Cooper, Police Say Panel Withheld Findings Against I OS Officers , New
York Times, Sept. 2, 1998. Copy supplied,

Michael Cooper, Chief to Leave the City’s Police Review Board, New York
Times, Aug. 19, 1998. Copy supplied.

Dan Barry, Mayor Defies Bar Association and Reappoints Queens Judge, New
York Times, Apr. 1, 1998. Copy supplied.

14

529

Pele Bowles and Mohamad Bazzi, Family Court Judge ’s 10-Year Term Decried ,
Newsday, Apr. 1, 1998. Copy supplied.

Michael Cooper, New York Undercounted Civilian Complaints Against Police,
New York Times, Dec. 11, 1997. Copy supplied.

Alice McQuillan, Cop Brutality Complaints Undertallied, New York Daily News,
Dec. 11, 1997. Copy supplied.

Liz Widen, Budget Cuts on Mayor 's Agenda , Newsday, Nov. 15, 1 997. Copy
supplied.

Alice McQuillan, Rudy s Budget Ax Looms Over CCRB , New York Daily News,
May 15, 1997. Copy supplied.

Barbara Benson, Lawyers Find Being Small is Liability, Crain’s New York
Business, May 15, 1995. Copy supplied.

Garry Pierre-Pierre, Examining a Jump in Police Brutality Complaints , New York
Times, Feb. 22, 1995. Copy supplied.

Keith A. Saunders, Contemporaries Disagree with Mansfield Remarks, The
Crimson, Mar. 24, 1993. Copy supplied.

Bab Liff, Review Board Vacancies Raise Ire , Newsday, Mar. 1 8, 1992. Copy
supplied. •

Paul Moses and Rita Giordano, Review 's In: Few Are Satisfied with Board,
Newsday, Mar. 31, 1991. Copy supplied.

Alison Carper, Cop Watchdog Pane! Seeks More Power, Newsday, Feb. 24, 1 990.
Copy supplied.

Mitch Gclman, Complaint Board Draws Complaints, Newsday, Aug. 7, 1989.
Copy supplied.

Rose Marie Arce, Tompkins Square a Year Later, Newsday, Aug. 4, 1 989. Copy
supplied.

Press Conference, Civilian Complaint Review Board, draft report of the board,
Apr. 1 8, 1 989. I have no notes, transcript or recording.

Mitch Gelman and Richard Esposito, 87 Cop Complaints Fall, But '88...,
Newsday, Nov. 26, 1988. Copy supplied.

15

530

Don Terry, Board Cites Dip in Complaints Against Police , New York Times,
Nov. 24, 1988. Copy supplied.

13. Judicial Office : State (chronologically) any judicial offices you have held, including
positions as an administrative law judge, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.

I have not held judicial office.

a. Approximately how many cases have you presided over that have gone to verdict
or judgment?

i. Of these, approximately what percent were:

jury trials:

%

bench trials:

% [total 100%]

civil proceedings:

%

criminal proceedings:

% [total 100%)

b. Provide citations for all opinions you have written, including concurrences and
dissents.

c. For each of the 10 most significant cases over which you presided, provide: (1) a
capsule summary of the nature the case; (2) the outcome of the case; (3) the name
and contact information for counsel who had a significant role in the trial of the
case; and (3) the citation of the case (if reported) or the docket number and a copy
of the opinion or judgment (if not reported).

d. For each of the 10 most significant opinions you have written, provide: (1)
citations for those decisions that were published; (2) a copy of those decisions that
were not published; and (3) the names and contact information for the attorneys
who played a significant role in the case.

e. Provide a list of all cases in which certiorari was requested or granted.

f. Provide a brief summary of and citations for all of your opinions where your
decisions were reversed by a reviewing court or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings. If
any of the opinions listed were not officially reported, provide copies of the
opinions.

g. Provide a description of the number and percentage of your decisions in which
you issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored.

16

531

h. Provide citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, provide copies of the opinions.

i. Provide citations to all cases in which you sat by designation on a federal court of
appeals, including a brief summary of any opinions you authored, whether
majority, dissenting, or concurring, and any dissenting opinions you joined.

14. Recusal: If you are or have been a judge, identify the basis by which you have assessed
the necessity or propriety of recusal (If your court employs an "automatic" recusal system
by which you may be recused without your knowledge, please include a general
description of that system.) Provide a list of any cases, motions or matters that have
come before you in which a litigant or party has requested that you recuse yourself due to
an asserted conflict of interest or in which you have recused yourself sua sponte. Identify
each such case, and for each provide the following information:

I have not served as a judge.

a. whether your recusal was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any other person or interested party; or if you
recused yourself sua sponte;

b. a brief description of the asserted conflict of interest or other ground for recusal;

c. the procedure you followed in determining whether or not to recuse yourself;

d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any
other ground for recusal.

15. Public Office. Political Activities and Affiliations :

a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, state chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.

I was appointed by Mayors Edward Koch, David Dinkins, Rudy Giuliani, and
Michael Bloomberg, and confirmed by the New York City Council, to serve on
the New York City Civilian Complaint Review Board from 1987 through 2010.

I have had no unsuccessful candidacies for elective office or unsuccessful
nominations for appointed office.

b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election committee. If you have ever

17

532

held a position or played a role in a political campaign, identify the particulars of
the campaign, including the candidate, dates of the campaign, your title and
responsibilities.

In 1994, 1 served on George Pataki’s gubernatorial transition team as a member of
the criminal justice committee.

1 6. Legal Career: Answer each part separately.

a. Describe chronologically your law practice and legal experience after graduation
from law school including:

i. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;

I did not serve as a clerk to a judge.

ii. whether you practiced alone, and if so, the addresses and dates;

1 was never a sole practitioner.

iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.

1978-1986
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Associate

1986-1994

Milgrim Thomajan Jacobs & Lee
405 Lexington Avenue
New York, New York 10005
Partner

1994-2001
Seward & Kissel, LLP
One Battery Park Plaza
New York, New York 10004
Partner

18

533

2001 -2004

Torys LLP

237 Park Avenue

New York, New York 10017

Partner

2004-2005

Constantine Cannon (now Constantine Abom)

450 Lexington Avenue
New York, New York 10017
Of Counsel

2005 - Present
Baker Hostetler, LLP
45 Rockefeller Plaza
New York, New York 10111
Partner

iv. whether you served as a mediator or arbitrator in alternative dispute

resolution proceedings and, if so, a description of the 1 0 most significant
matters with which you were involved in that capacity.

I have not served as a mediator or an arbitrator.

b. Describe:

i. the general character of your law practice and indicate by date when its
character has changed over the years.

The general character of my law practice throughout my career has been
commercial litigation. I have represented clients including the most
sophisticated financial services institutions in the world, the largest
industrial entities, and the most demanding general counsel and business
clients in a challenging array of litigations including international letters of
credit, tender offer litigation, business frauds - including the Wedtech and
Madoff cases - and creditors rights cases.

ii. your typical clients and the areas at eaeb period of your legal career, if
any, in which you have specialized.

My practice has been principally in the area of financial services litigation
for banks, brokerage houses, and insurance companies. I have also
handled bankruptcy and creditors rights litigation. At present my law
firm. Baker Hostetler, is counsel to my partner Irving Picard as the Trustee
in the Madoff case. I am heading one of the many feeder fund litigation
teams addressing the issues presented by this case. My practice involves

19

534

designing and executing discovery programs, taking and defending
depositions, making and opposing motions for full and partial summary
judgment where appropriate, analyzing electronic discovery issues for
clients, educating junior partners and associates on the intricacies of trying
cases, arguing appeals, and ensuring that we comply with the highest
standards of ethics in the practice of the law, a topic on which I lecture at
the Practising Law Institute.

c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.

Virtually all of my practice has been litigation, and I have made occasional court
appearances throughout my career.

i. Indicate the percentage of your practice in:

1 .

federal courts:

60%

2.

state courts of record:

30%

3.

other courts:

4.

administrative agencies:

10%

ii. Indicate the percentage of your practice in:

1.

civil proceedings:

100%

2.

criminal proceedings:

d. State the number of cases in courts of record, including cases before
administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.

Approximately 50 cases, of which 1 was sole counsel in 25, chief counsel in 10
and associate counsel in 15.

i. What percentage of these trials were:

1. jury: 50%

2. non-jury: 50%

e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any
oral argument transcripts before the Supreme Court in connection with your
practice,

I have not practiced before the Supreme Court of the United States.

17. Litigation : Describe the ten (1 0) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases

20

535

were reported, and the docket number and date if unreported. Give a capsule summary of
the substance of each case. Identify the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case:

a. the date of representation;

b. the name of the court and the name of the judge or judges before whom the case
was litigated; and

c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.

1. Wedtech Adversary Proceedings , Bankruptcy No. 86 B 1236 (HCB) (SDNY) (1986).
After Wedtech filed for bankruptcy, I served as counsel to Citibank, N.A. in its capacity
as a member of the Wedtech Official Unsecured Creditors Committee bringing
numerous actions to recover property for the estate. The Hon. Brian Cogan (United
States District Judge, Eastern District of New York) served as counsel to the
Committee during his practice as a partner at Stroock & Stroock & Lavan. The case
was pending for several years in the United States Bankruptcy Court, Southern District
of New York.

Counsel for the Creditors Committee:

Brian Cogan

Then a Partner at Stroock & Stroock & Lavan

Now United States District Judge for the Eastern District of New York

225 Cadman Plaza East

Brooklyn, New York 11201

2. The Sank of Nova Scotia v. Lawaetz, District of the Virgin Island and Third Circuit,
published opinions at 728 F.2d 177 (3d Cir. 1984); 653 F. Supp. 1278 (D.V.1. 1987). I
tried a series of cases and argued appeals to the Third Circuit Court of Appeals
representing the Bank of Nova Scotia against its hotelier borrower and his St. Croix
Hotel Corporation, involving the valuation of a series of complex corporate notes and
interest rate changes over a decade of dealing. The Bank had been found to have
committed fraud for the first time in its history prior to my involvement in the case.

The Third Circuit reversed the adverse jury findings against The Bank of Nova Scotia
and ordered new trials on both liability and damages claims. The parties subsequently
resolved the action consensually.

21

536

Opposing counsel :

Joel Holt

2132 Company Street, Suite 2
Christiansted, VI 00820
340-773-8709

3, Ban v. Bank of America, V. T. , No 84 Civ. 6013 (John F. Keenan, United States
District Judge for the Southern District of New York; February 3, 1 986). 1 was counsel
with other attorneys at Shearman & Sterling for Citibank, N.A. in a case in which
plaintiff depositors brought an action against the defendant banks for repayment after
the banks were forced to close and to relocate after the Vietnam War. The complaint
was held barred by the statute of limitations and the doctrine of equitable estoppel did
not defeat the defense. The case was significant in the further development of law in
the Second Circuit confirming the situs of the debt as the place of deposit in an
extremely important holding for the financial services industry in New York.

Opposing counsel:

Arthur M. Boal, Jr.

Boal, Doti & Larsen
New York, New York

The firm no longer exists, but the phone no. for Mr. Boal is 303-670-5710.

Andrew J. Connick

Paul T. Shoemaker

Kelley A. Cornish

Milbank, Tweed, Hadley & McCloy

One Chase Manhattan Plaza

New York, New York 10005

212-530-5000

4. Spilzer v. Gen. Electric Co., Case Index No. 400927/00. I represented the General
Electric Company in an action brought by the State of New York before Justice Louise
Gruner Gans in the Supreme Court of New York County. The case was decided in July
of 2001. The action alleged that General Electric had engaged in deceptive business
conduct in connection with a recall of dishwashers in 1999. The Court found by
memorandum decision dated January 16, 2001 that GE had acted deceptively in
connection with a recall of certain models of dishwashers it had manufactured and sold.
I worked with GE, counsel for the Attorney General and the Court to facilitate the
recall and repair of the product.

Opposing counsel:

Christine Morrison
Assistant Attorney General
120 Broadway

New York, New York 10271
212-416-8000

22

537

5 . Irving H. Picard, Trustee for the Liquidation of Bernard L. Madoff Investment
Securities LLC v. Beacon Associates LLC (Hon. Burton R. Lifland, Bankruptcy Court
Judge, Southern District of New York) S1PA Liquidation No. 08-01 789. This is the
SIPC liquidation arising from the Ponzi scheme of Bernard L. Madoff and Bernard L.
Madoff Investment Securities LLC. I am heading one of several of our firm’s feeder
fund teams litigating against and negotiating with the large corporate and partnership
entities that steered investors to Madoff. The cases arc ongoing and relatively new, but
my involvement in our firm’s efforts has already resulted in considerable recoveries for
the estate, some of which have been publicly reported in the courts and in the legal
press following the case.

Opposing counsel:

Lewis Liman

Cleary, Gottlieb Steen and Hamilton
One Liberty Plaza
New York, New York 10006
212-225-2000

Tab Rosenfeld
Rosenfeld and Kaplan
535 Fifth Avenue, Suite 1006
New York, New York 10017
212-682-1400

6. Mayer v. Sutcin Holding Corp., Arbitration before Arbitrator Frank Liantonio of
Cushman and Wakefield (1986). This was a lengthy and contentious arbitration held at
the Association of the Bar of the City of New York over many days involving the
valuation of the ground lease of the Cinema 1 and 2 Theatres on the Upper East Side of
Manhattan. These theatres had been the first art house multi-plex.es in New York and
the twenty-year renewals were of great value to the litigants: to have the lease valued
as a theatre would mean a great saving to the corporate owner as opposed to having the
valuation done at the highest and best use levels. The result was a valuation as a theatre
rather than highest and best use.

Opposing counsel:

H. Richard Penn
11 8 East 60' 1 ’ Street
New York, NY 10022
212-751-0718

7. Citibank v. Plapinger , 66 N.Y.2d 90, 495 N.Y.S.2d 309, 485 N.E.2d 974 (1985). I was
one of the principal authors of the brief for this action, argued by another Shearman &
Sterling attorney, which was ultimately resolved in the New York Court of Appeals.

The Court upheld the sanctity of absolute and unconditional personal guarantees and
limited the ability to use oral evidence to modify written agreements by violating the

23

538

bar and merger language of corporate guarantees when executed, as here, by
sophisticated borrowers advised by counsel.

Opposing counsel:

Owen McGivem (deceased)

8. Burson-Marsteller. LLCv. Wachovia Bank, N.A. v. Morgan Stanley and Discovery
Bank , Docket Number 06 Civ 00121 (Judge Deborah A. Batts); United States District
Court, Southern District ofNew York. I was lead counsel for Morgan Stanley in this
action brought initially by the complaint of Burson-Marsteller, L.L.C. against
Wachovia Bank alleging the improper cashing of a series of checks presented by
fictitious payees. Extensive claims, cross-claims and third party claims were alleged as
the details of the fraud were uncovered. Eventually, given that Baker Hostetler had
representational relationships with each of the banking defendants added, we had to
withdraw as counsel with the consent of the court and all parties.

Opposing counsel:

Jenifer Tafet Klausner
Davis & Gilbert, LLP
1 740 Broadway
New York, New York 10019
212-468-4800

John A. Nocera

Rosner, Nocera & Ragone, LLP
1 10 Wall Street, 23 rd Floor
New York, New York 10005
212-635-2244

James J. Coster

Satteriee Stephens Burke & Burke, LLP
230 Park Avenue
New York, New York 10169
212-818-9200

9. Loro Services Sys., Inc. v. New Fulton Fish Mrk. Coop., Docket Number 112884/05,
Supreme Court New York County (Justice Carol Edmead), appeal to the Appellate
Division First Department (2005). I was lead counsel in this litigation to defeat the
challenge of Petitioner Laro Service System, Inc. to the decision by the Business
Integrity Commission ofNew York granting the Cooperative an unloading license at
the New Fulton Fish Market at Hunts Point in the Bronx, New York. The litigation
also involved the move of the New Fulton Fish Market from its traditional commercial
leasehold space on the East side of Manhattan. The action was resolved after trial and
appeals to the satisfaction of all parties.

24

539

Opposing counsel:

Randy Mastro

Gibson Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
212-351-3825

1 0. Devito v. AmTrust Bank, Case Number 1 :09-cv-03858 (BMC) (2009). This class
action is pending in the United States District Court for the Eastern District ofNew
York (Hon. Brian Cogan) having been filed Dn September 4, 2009. I am counsel for
AmTrust Bank defending a class action brought challenging the legitimacy of fees
consumers paid to financial services institutions at closing - a “Table Funding Fee” of
approximately $350. The plaintiffs assert that the claims violate the Real Estate
Settlement Procedures Act of 1974, Sections 8(b), 12 U.S.C. 2607(b) (“RESPA”) and
Section 349 ofNew York General Business Law - Deceptive Acts and Practices, N. Y.
GBL Section 349.

Opposing counsel:

Oren Giskan
Catherine Anderson

Giskan Solotaroff Anderson & Stewart, LLP
1 1 Broadway, Suite 2150
New York, New York 10004
212-847-8315

Cory L. Zajdel
Z Law, LLC

8830 Orchard Tree Lane, Suite 117
Towson, Maryland 21 286
443-632-3010

18. Legal Activities : Describe the most significant legal activities you have pursued,

including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organization(s) for whom you performed lobbying activities and describe
the lobbying activities you performed on behalf of such client(s) or organizations(s).

I have served as a special master and as a referee in approximately ten (10) cases, having
received appointments from the Hon. Denny Chin of the United States District Court for
the Southern District ofNew York; the Hon. Arthur M. Schacht of the New York State
Supreme Court, Kings County, the Hon. Edward Rappaport of the New York State
Supreme Court, Kings County (ret.), and the Hon. Marsha L. Steinhardt, for the Supreme
Court, New York State, Kings County.

As a Commissioner of the CCRB from the Fall of 1987 through November 1, 2010, 1
have reviewed thousands of complaints filed by ordinary citizens against police officers

25

540

employed by The New York City Police Department. The complaints properly under the
jurisdiction of the CCRB fall in one or more of these four categories and did not include
official corruption cases: Excessive Force, Abuse of Official Authority, Discourtesy to a
member of the public, and/or Offensive Language directed to a member of the public
■ including ethnic slurs, racial slurs, gender related slurs, sexual orientation slurs, national
origin slurs, and religious slurs. The abbreviation of F.A.D.O. (Force, Abuse,
Discourtesy, Offensive Language) governs the activities of the Board. Each case is
assigned to one or more investigators who then interviews the complainant, any public
witnesses to the alleged event, any police officer witnesses to the alleged event, and then
finally the police officer who was the subject of the complaint. The CCRB has subpoena
power, and so medical and other records are also obtained as part of the record of each
case. Under a now longstanding Memorandum of Understanding between the CCRB and
the NYPD, as well as the governing statutes, the NYPD provides documents to the CCRB
upon request. The CCRB investigators then prepare a written report of each case, and
submit it to a Panel consisting of three Commissioners for review, report and
recommendation to the Police Commissioner. The recommendations are not binding, but
are advisory in nature. The range of recommendations includes substantiation of the
allegations of a given complaint with an attendant recommendation of punishment within
a range of possible punishments (charges and specifications; command discipline;
warnings) to exoneration of all the allegations of a given complaint. The CCRB also has
a mediation program that allows, in a range of cases, for the citizen complainant and the
subject police officer to agree to a mediation of the complaint at the CCRB with
professionally trained mediators agreed upon by both parties. The Police Commissioner
usually elects to follow the recommendations of the CCRB, but is not required to do so.
The complainant and the police officer are informed of the disposition of the case
recommended by the CCRB, and the reasons for the disposition. The deliberations of the
CCRB with respect to particular cases are confidential, although the CCRB does publish
monthly statistics concerning the nature of complaint (i.e. the particular category under
the F.A.D.O. jurisdiction), the precinct location of the complaints, the demographics of
the individuals involved in the complaints, and any statistically observed trends reflected
by the complaints. The CCRB also periodically issues reports on important issues related
to Police Civilian relations, such as hollow point bullets, repairs of doors mistakenly
destroyed in exigent circumstances or warranted searches by police officers, and stop and
frisk encounters. Those reports are all available on the CCRB web site.

I have performed no lobbying activities on behalf of any client or organization.

1 9. Teaching : What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.

For sixteen years (1 987-2003), I taught a course in American Legal History as an adjunct
professor of law at Brooklyn Law School. 1 used the Presser and Zaindland case book
entitled. Law and Jurisprudence in American History: Cases and Materials. I do not
prepare any syllabi.

26

541

20. Deferred Ineome/Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted

, contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest.

None, other than the standard payout from my vested pension 40 IK plan with Baker
Hostetler and my personal rollover IRA.

21. Outside Commitments During Court Service : Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.

None, other than to continue as a member of the Board of the Practising Law Institute,
whieh does no fundraising. I would resign all other board affiliations.

22. Sources of Income : List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding $500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1 978, may be substituted here).

See attached Financial Disclosure Report.

23. Statement of Net Worth : Please complete the attached financial net worth statement in
detail (add schedules as called for).

See attached Net Worth Statement.

24. Potential Conflicts of Interest :

a. Identify the family members or other persons, parties, categories of litigation, and
financial arrangements that are likely to present potential conflicts-of-interest
when you first assume the position to which you have been nominated. Explain
how you would address any such conflict if it were to arise.

There are no financial arrangements that are likely to present potential conflicts-
of-interest. My spouse, Dr. Alice Beal, M.D., is Director of Palliative Care for
the New York Harbor Healthcare System Veterans Administration. My son is the
Assistant Director for Baseball Operations for The New York Yankees. I would
certainly recuse myself from any cases in which the Veterans Administration or
The New York Yankees were parties. Moreover, I would consult the Code of
Conduct for United States Judges and other relevant canons and statutory

27

542

provisions, and consult with my colleagues on the bench for additional guidance
as appropriate,

b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.

I would consult with my colleagues on the bench, and retain ethics counsel to
advise me with respect to any such potential conflict. If confirmed, I would
carefully apply the recusal statues, the relevant canons of the Code of Conduct for
United States Judges. I would also consult Professor Stephen Gillers, Barbara
Gillers and/or Michael Ross, ethics experts whom I have known for many years
through Bar Association activities, for guidance.

25. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar
Association’s Code of Professional Responsibility calls for “every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving the disadvantaged.” Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.

I have devoted thousands of hours in my capacity as faculty member and trustee of The
Practising Law Institute. I have devoted many hours to the work of the Civilian
Complaint Review Board whose per diem payment is substantially less than the hourly
rate I charge at my law firm. My work with the Federal Bar Council, the Brooklyn
Hospital Corporation, the Association of the Bar of the City of New York, the New York
Lawyers for the Public Interest and the Kings County Inns of Court and the Lawyers
Committee for Civil Rights has also been pro bono.

26. Selection Process :

a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
the interviews in which you participated). Is there a selection commission in your
jurisdiction to recommend candidates for nomination to the federal courts? If so,
please include that process in your description, as well as whether the commission
recommended your nomination. List the dates of all interviews or
communications you had with the White House staff or the Justice Department
regarding this nomination. Do not include any contacts with Federal Bureau of
Investigation personnel concerning your nomination.

1 submitted a completed Confidential Questionnaire for U.S. District Court
Candidate to the Screening Committee for Senator Charles E. Schumer in
September of 2009. I met with that Committee in October of 2009. I
subsequently met with Senator Schumer and his staff in October of 2010. Shortly
thereafter I received a phone call from pre-nomination officials at the Department
of Justice, and have been in contact with them since that time. On January 11,

201 1 , 1 interviewed with attorneys from the White House Counsel’s Office and

28

543

the Department of Justice. On March 9, 20 1 1 , the President submitted my
nomination to the Senate.

b. Has anyone involved in the process of selecting you as a judicial nominee

discussed with you any currently pending or specific case, legal issue or question
in a manner that could reasonably be interpreted as seeking any express or
implied assurances concerning your position on such case, issue, or question? If
so, explain fully.

No.

29

AO 10
Rev. MOW

544

FINANCIAL DISCLOSURE REPORT
NOMINATION FILING

Report Required by the Ethics
in Government del of 1978
(5 US.Capp. §§101-111)

l. Person Reporting (Iasi name, fin*, middle initial)

Kuntz, William F.

2. Court op Orginbados

eastern District of New York

3. Date of Report

03/10/201 1

4. TUI* {Aitfck ill judge! indicate active or senior status;
magistrate judges indicate full- nr (uot-timr)

U,S. District Judge

Si. Report Type (cheti spjjroprtslc type)

fy| Nomination, Date M/W/201 1

{ | Initial | [ Annual Final

0. Reporting Period

01/01/2010

02/2S/20H

56. Amended Report

?. Chambers or Office Address

Baker Hosteller, LLP

45 Rosckc feller Plaza

New York, New York 101 1 t
liih Floor

8. On die buts of the Information ennulitod in this Report tad any
rBodUkatteu pertahdog Lhcrpto, It b. In roy opinion, lo compliance
with applicable lava nod rexulartons.

Rertnrtng Officer Date

IMPORTANT NOTES: Tht instructions accompanying this farm must be followed. Complete oil parts,
checking the NOSE box for each part where you have no reportable information. Sign on laU page.

I. POSITIONS v (Reporting Individual a*Jy; tat pp. 9-tJ of filing ins/rualonsj
| | NONE (No reportable positions.)

posrnoN

K Partner Bate Hostdkr, LLP

3 .

4 .

II. AGREEMENTS . (Reporting indnhhtnl only; ice pf\ tt-fS nf filing Inllrutdem.)
f /1 NONE (No reportable agreements.)

DAlfi

545

FINANCIAL DISCLOSURE REPORT

Page 2 Qfl 1

N»mt of Person Rtporrtag

D*te of Report

Kuntz, William F, ’

03/10/201 !

ID. NON-INVESTMENT INCOME. (Hrporaag iMOvUual and spetuf! tet PH J7-J4 of filing irutriiaiom)
A. Filer’s Non-Investment Income
( ~ 1 NONE (No reportable non- investment income. )

DATE

SOURCE AND TYPE

INCOME

(yours, not spouse's)

1.2010

Civilian Complaint Review Board, NYC {Per Diem)

£5,670.00

2. 2010

Baker Hostetler, LLP (Partner Salary)

$305,000.00

3.2009

Biker Hosteller, LLP (Partner Salary)

$350,000.00

4.2011

Baker Hostetler, LLP (Partner Salary Annualized Baris)

5345,000.00

5.2009

Civilian Complaint Review Board (Per Dietn)

SI <5,704.00

6.

7.

B. SpOUSe's Non-InVeStfnCnt Income - // you rrerr nonlcd daring any porting of iherqwrilag year, complete tki* tertian-
(Dollar ii mount not required creep! far honontria.)

j 1 NONE (No reportable non-investment income.)

DATE

SOUE.CE.AmTY?F.

1. 2010

Department of Veterans A Rain, sal* y

2.2010

Long bland College Hospital, honorarium

3.2011

Department ofVcicrans Affairs, salary

IV. REIMBURSEMENTS — trampomticn, lodtfirg.Jbod, twertairtmpti

(tnchtdu Ihoie to jpouir and dependent children: see pp. 75-27 of filing iiutrueriav.)

j | NONE (No reportable reimbursements.)

SOURCE DATES LOCATION

I, Exempt

P URPOS E

546

FINANCIAL DISCLOSURE REPORT

N»mc of Ptrws Rtporring

, . 5 Datcof RtpoiT

Page 3 of 1 1

Kuntx, Wi)H*m F.

03/10/201 1

5.

FINANCIAL DISCLOSURE REPORT

j Nuor ofPtreon Reponlng_

: ' I?

■* -D»<*ofRtp<rl

Page 4 ofl 1

Knniz, Willbnj F.

03/10/202 1

V* GIFT S. (Include! that to tfVUJ! and dependent thUmn tetpp.1 i-SI of filing inttructUm.)
f~ I NONE (No reportable gifts.)

SOURCE DESCRIPTION VALUE

l. Exempt

X_

4,

5.

VI. LIABILITIES. find a da theit nf rpcuie and dependent cbAdrta; irepf i J7-13 of fling iralmtriem)
[/] NONE (No reportable liabilities.)

547

FINANCIAL DISCLOSURE REPORT

N»m* of Ftrsoa Reporting

; ; • ■ * -

Daft of Repon

Page 5 of 1 1

Kuntz, William F.

03/10/2011

VII. INVESTMENTS and TRUSTS •elut, naxwcDaKt (Inriadd [hate of ipouit *nJ dcpmjmi children; tcrpp. }4-60 Of/IUng initruatOMJ

| 1 NONE (No reportable income, assets, or transactions.)

A.

a."

- ■

D.

I

DneripiiM of Aocb

Income during

Grot* value at end

Traotactiooi during reporting period

; {trchdrngtnui asset*)

reporting period

of reporting period

|

(0

W

0>

(2)

«>

(2)"

' d)~

(4)

(5) j

PUee'(X)*«RrT each aster

Amoarn

?ype<c-g..

Value

Value

Typeftfr.

Date

Value

Cain

Wowiiyof j

oernpt from prior disclosure

Code l

div., leal.

Code 2

Method

buy. sell.

mirVdiyy

Code 2

Code I

tuycr/idlcr j

(A-H)

or uu.)

<«*)

Code 3

redemption)

(J-P)

(A-H)

(if private j

.. -

—

(0-W)

.

mraacsion) i

1. Fidelity Growth & Income Retirement Fund

D

lnt/Div.

O

T

Exempt

2. Merrill Lynch High Income Fund

E

Int./Div.

N

T

3. Aflac Inc.

None

K

T

■

4. AOL Inc.

None

l

T

■

■

5. Abbott Laboratories

B

Divide tul

H

T

■

■

6. Air Products & Chemicals Inc.

A

Dividend

K

T

■

7, Allria Group, lne.

None

L

T

|

None

K

T

■

None

K

T

10. Anriieuscr-Busch Inbev Sports

None

K

T

II. Anyslnc.

None

J

T

12. Apple Inc.

None

a

T

13. Automatic Daw Processing Inc.

B

Dividend

L

T

14. Avon Products Inc.

L

T

1 5. Bank of America Corporation

None

K

T

16. Drinker Inti. Inc.

A

Dividend

T

17. Bristol Myers Squibb Co.

None

K

T

i I. loose* Cain Coda;

!S*tCoWoBI B«jrV)
2. VakuCodt*

j (SatCokwuCI udD))

A *51.000 orlni
F -SM#Cf - sion.aoo
I -J1 MOO ex lea
N -U50.0C1 - $500,000

n <42&oeo.oo> - svxooojm

0 •Ape***»!

B ”$l#01 • $2,500
G 'ItOD.UCt * SI JXO CCO
K "SI 3.00 1 >$50,000
O-S500Jfll -SI.OOO.COO

c»njoi-$j.«o
H! -51.000^01- $5,000^0
L -$50001 -S 100.000
FI “51,000.001 - u.000.000
T4 =Maw U»*n 5 M .000.000
$-AiMnjn»l
W-EaimRtd

D -Vi i* 1 -S) 5,000
H2 -Mao; ikot $$#00,000
M -5100,001 -5210,000

n-u.uooiooi - ci.ooa/M

E “SIS, 00) -SJO-OCO |

2. Value MWiod Colts
(Sre CtiEHH) 11)

U -Boat Value

R -Con (Rul EnacOety)

r^CvkUtitd

548

FINANCIAL DISCLOSURE REPORT

N a me ■ f Pcnou R eportlnj

.P*t of Report

Page 6 of 1 1

Kuntz, Will 10 m K

03/10/2011

VII. INVESTMENTS and TRUSTS — «n*f, watus, traniaetum (Includes Am ef spouse «rf iepmdtn t ekOietn; Sorpp. 34-tO of filing bvmec/ionzj
j 1 NONE (No reportable income, assets, or transactions.)

' A-

B.

c

D.

Ooetipboo of Aucu

loccmc during

Uroo value it end

TfansvL-tknu during reporting period !

! (inthrdi ri£ nust oucu)

repenting period

of repenting pared

m

C2)

0)

P)

0)

(2> 1

(3> ;

(•») ;

(5)

Place "fX)’ after car h asset

\ Amoum

T'yp'Ctg- .

Vslue

Value

Type, (tg-,

Dale

Value j

Gain !

Identity of

eacrcjn from pnerr rtisrla-nire

1 Code 1

j div., mat.

Code2

Method

bur, kII. 1

mroUd/yy :

Code 2 j

Code I

buycr/scl [cf

1 (A-H)

orint.) !

fJ-P)

OfcJ

redemption! 1

(i-P) I

(A H) ,

(if private 1

1

i

(Q-W)

, ...j

. J

. . . _i

mutitclion) j

1 8. Chevron Corp.

T" 1

Dividend

L

m

19. Western Assei NY Muni Money Market
Fund Cl A

A

Dividend

N

T

20. Coca-Cola Co.

A

Dividend

J

T

B

B

21. Walt Disney Co.

A

Dividend

K

T

22. Dominion Resources Inc.

None

K

T

B

23. E.I. Du Pontile Moun & Co.

None

K

T

24. Emerson Eloctric Co.

A

Dividend

L

T

25. Exxon Mobil Corp.

B

Dividend

HI

■

26. Frontier Communkatioiw Corp.

■

J

T

27. General Electric Co.

A

Dividend

’

T

28. General Mill# Inc,

B

T

29. G laxonTMhklinc PLC SP ADR

None

■

■

,

30. Hubbtii Inc. Gass B

B

■

31. Inld Corp

A

Dividend

J

T

32. IBM

None

L

T

33. Johnson & Johnson

None

K

T

34, Komnkiijke Philips

A

Dividend

J

T

B

' 1. Income Gaia Coils:

(Stc Column Bl tad D4)
. Z Value Calcs

\ fSa Conans. Cl and DJ)

- J.VrtiB Method fade.

I (Sec Column CZ)

A -Sl^COec lea

F-IW100! -5I0OJM
1-SlJ.HWnrlai
N rjaw.aoi . 1500,000

rj -su.oGo.oot • jm wo^oo

c> -AppcnMl

U - Bau* V.lut

B^t 1,001 -13J00
O “SI 00,00 1 - SI, 000,000
E “SIS, 001 - JJGOOO
0-««g»!-SMWUia>

X-G»r (Red Ert»* Only)
V'-OW

C-MJ01 - 15,000
HI -SI.CDOJDOI -JJ.MOJXO
L-SSXCOl -SKO.COG
P) --SUKXtUOl - 15.000 COO

r* -More lhM UOttMOXIO

S -Amootcu
W^Eitenwl

lWS.0Ct -SU.M0
Hi-htortfMnSS.W.WW
M “SIOD.OOI - tJKUHO
n -5\«M.fni -SM.OOtWOO

E -II 5,001 -SJO.OC

T-Out>Mwkci

549

VII. INVESTMENTS and TRUSTS — nine, rrexsadioiu (Tnduda L ftot* ofiycme and Jtptndnu chUdmr, Jtepf t 34-60 of filing OumctunsJ

{ | NONE (No reportable income, assets, or transactions.)

Description of As»m
(iodniiog mm ms«3)

Place “(X)" after each asset
oempi from prior disclosure

Income during Grt>M value alcod

reporting period of repo mug peri od

Transactions during reporting period

<i)” | ' m (»)' ‘ (V) 1 ffl'Tffl T w

Amount Typeftg.. Value Value Type (eg., Data Value i G»io
£ -° <lc 1 div., ran, Code 2 Method buy, stli, jiom/dA'yy j Code 2 * Code I
(A-H) of bn.) (J-P> Code 3 redemption) i ; <J-P) j (A-H)

<3) ! (4) (5)

Value i Gain Identity of

Code 2 1 Code ) buyerfsellcr

(J-P) | (A-H) (if private

35. Kraft Foods Inc. Class A

36. electronics NS Sport ADR

32. Linear Technology Corp.

38. Medcn Health Solutions Inc.

39. Merck & Co. Inc.

40. Meridian Btosciencc Inc.

41. Microsoft Corp.

42. Moodya Corporation

43. Norfolk Southern Corp.

44. PepsiCo Iik.

4J. Philip Moral* Inti. Inc.

46. Piedmont Natural Gas

47 Plum Creek Timber Co.

48. Praxair Inc.

49. Proctor & Gamble Co.

50. Royal Dutch Shell PLC ADR

51. Sysco Corp,

I. tnoomc Clip Codec A-SI^**wta»

j fSa CotwnmSI and DO F - UD.00J - JtOaOCO

i J. VihKCodc i -SI 5,000 to*

(itM CB tuMi Cl tod Dj) M '125AW! • SMO.OM

PJ •'UiMOm ■ 131*0.000

j }. Value MrtJicd Coda* Q "Ajipwiaal

| (Stz Column C7) u -book Vike

3-S1.0C1 -S3 JOB C'SJJQI 1W

G -SS0O.MI - IIJXDXC HI -SI, OOO, 00 1 - WO ,000

K •SliJBI -110,000 I. -SJ0.30I- 5100,000

0 -1500.001 - si.oen.wo pi -si.too.oot . s j.oooiooo

N-Mwc*aol5O,M0.0M
R -ton (Real Elute Only) S‘^ i W«m

V i>w W -Eilknafcd

D 45,001 ■ 515.000 E -SI 1.00 1 ■ WOOOO I

IQ -Mon than 15,000,600

m -I tamo I - Qio.ooa

n -SJjXXUW I ■ 515.004.000
T «£*•>, Muter

550

FINANCIAL DISCLOSURE REPORT

Nomt'ifPtrMn RtporUaj ...

Dale of Report

Page 8 of 1 1

Knnlz, WiHiom F.

03/! 0/20 U

VII. INVESTMENTS and TRUSTS - im ., mnsadieia (ftteku ics tfusse of spaas* and dependent c hildrtn; sec pp, 34-60 o/JiSng iiutmrjioru.}

j | NONE (No reportable income, assets, or transactions.)

A.

n.

C

""" 1

O.

„

Deicripuon of Auen

Income during

Gross value M cod

Traflsaetiooj during reporting period I

(including trial aucu)

RpoiKi| pared

Of TCporung peri od

0}

(2)

(1)

<2>

(»>

(2J

(3)

<“)

<5)

Place *(X}* sfta - each alwl

Amoufl!

Type (eg..

Value

Value

Typc(c*-.

Dmc

Value

Cain

fdepiiiyof

catmpi 6im prior dijclorurc

div.. rent.

Code 2

Method

buy. tell.

mnVdd/yy

Code 2

Code 1

buyerfseller

{AH

or Inr.)

(IP)

Code 3

n&mnite)

(f-P)

(A-H)

(if private

(Q-W)

iraartrtion)

52. 3M Company

A

Dividend

J

T

53. Time Warner Inc.

D

Dividend

J

T

54. Time Wamer Cable Inc.

B

J

T

B

55. Total S.A, Span ADR

K

Dividend

J

T

56. US Bwiwip Del.

A

Dividend

J

T

57. Union Pacific Corp.

None

fC

T

58. Verizon Com municaiioni

B

B

T

59. Vodafone Croup PI.C Spans

mi

B

T

60. Wal-Mart Siores Inc.

T

61. Wcycriiauser Co.

1

T

62. iShnres MSCI Australia Index Fluid

A

Dividend

K

T

63. Van guard MSCI Emerging MVrt

A

Dividend

K

T

64. Alliance Capital Growth

■a

T

65. Sun American Capita) Appreciation

I

a

■a

66. S.A. 1 year fixed no MVA

■

,

T

67. S.A. Inil Orw Sc. Income

None

K

r

68. MF5 Total Return

None

K

T

i f.tnaomeGainCada.'

{ (S« fosumJU Bl and D4)

• 3. Value Coda

(S«e CnhuTOI Cl end D)1

j 3. Wue Method Coda
! IStt. Cohan# C3)

A-W.OOOoi.'ea
F-W0.D0t-S100.WO
J “SU.OOO or Iijj
n-jumwi - woaooo
ri -jjj.ooojoi - svxccc,ooo
Q -Appniul

U -Booh Vilsi

D-SIJOI -UJ00
G'Sioaooi -si.oooxioa
K-StJ.OOl -SM.000
O-SSOOAWI -s 1,000.000

R -Can (Real Ekvo OrJtf
v-omt

C“S2,V)t -SS M0
in -SI.OOPW) - S5.0W.0CO
L “550.001 -SI00.0O0
FI •SI.OOOJDOI - W.MOiOOO
M -Mow ih*n SWW/JCO
S-Aoaonml
W -Em matri

D-UJBI -it 1.000
H7 -More <hu SJ.000.000
M -1100,001 . {SSOjOOO
n -W.OPO.OOI - S25.000JWI

T -CiihMoto

551

financial disclosure report

Neror of Person Rapnninj;

......

Report .

Page 9 of 1 1 .

Kobo, William F.

03/10/201 1

VII. INVESTMENTS and TRUSTS — income, falur, /mwcjb« {in dudes those of jpeuu and dtp end era children; fee pp. 34-Si rtf fiEnn bmractknu.)
| | NONE (No reportable income, assets, or transactions.)

A.

i *

r c

i

D.

i

Ocwirpsian of Audi

Income during

Own value at end |

I raniucliora during reporting period {

(including (7Ui! Mteis)

reporting pen ad

of reporting period

0)

(2)

m }

[ m "

(1)

G)

(3) 1 <4)

(5)

Place "(X)’ *hn each aiset

| Amocfl!

Typtit*..

Value

Value

7 k* ( c -s-

Dale

Value Cain

| Identity of

Otranpt from prior itciAior:

| Cede I

1 div., real.

Code 3

Method

buy. acil.

nma'ddfyy

Code 2 j Code I

biiycrinriltx

or ml.)

(/-Pi

Cede 3

redemption)

<«•) { (A-H)

Of private

{Q-W]

i

1 . ...

tnnaacrieq)

69. Citibank Dcpodil Program

■

None

J

T

70. Ishtres MSCl F.mg Mkie 1 rules Fund

None

J

T

71. Invcscu ConslcllBlion Fund Class A

None

i

■

72. DWS Communications Fund Class A

None

J

T

73. Legg Mason CB Large Cap Growth

None

J

T

74. Lcgg Mason Global Currents

mn

H

T

75. Pmnam Voyager Fund Inc. Cl. A

■

T

76. Washington Mutual Investors Fund Ct. A

None

K

T

77. Sirijw-Tini-llS Treasury IrvtO*/.

None

L

T

7*. CH Energy Group Inc.

A

Dividend

J

T

79. Putnam Income Fund A

A

Dividend

J

T

80. Whole Life Insurance Policy AXA Equitable

E

Dividend

N

T

8). Citibank Checking Accounts

O

Dividend

M

T

82.

83.

84.

85.

4 I. Taeooc C*Ja Cods:

I (Sr (Wbiwi D I w) M

| 1 Value Coda
I (Si* Coluiaiu Cl ml DJ)

j 1. Value M«ftod Cotki
j (Sea Ccta»n C7>

A -St.OOOor leu
F -S50.00) -SlOftCCO
J -515.000m k*»

M *5350,001. iXWXfi

n -njj»oj»i - iiaaM.000

0 "Appn»»l
U-Itoai Value

a-ji.ooi ■ u,»o
G -4ioo cot .si.ooo.aoo
K *413,001 -U04OC
0 -4S0Q.001 - 41,(»0.D00

R-Cba(Hal£jauOoty(
V »0»h«t

C-OJO* -44.000
HI 'JlflOOCOI • 44,000.000
L *450.001 • 5130.000

71 -41.0CKX001 - UD0Q.0M
M * Moat das U6MDXOO
S '•Aai&srcnf
"W -Rutiroted

D -55,061 -SiSJWJ
HI -More Dim 45.000,000

M'Sioowi -njo.oto
ri’iiMO.oo! -us^otywi

T*CaihM*itat

Ti -414.001 - $50,000 ;

552

FINANCIAL DISCLOSURE REPORT

N»aw ofPeraoaRepMtius ,/ . .. . ......

Bah of Re port

Page 10 of U

Kurtz, William F.

03/10/201 }

vni. ADDITIONAL INFORMATION OR EXPLANATIONS.

FINANCIAL DISCLOSURE REPORT

Name of Ptraon Reporting t

^JDafedf Rej^rf

Page 11 of tl

Kuntz, William F.

03/1CWOH

IX. CERTIFICATION.

1 certify that all reformation given above fl»cTt*d iivg Infoncsttoa pertaining let ray rpourt and min or or dependent children, if any)!*
of come, true, and complete to lb* best of my knowledge »od belief, sod that any Inform* Item oot reported wms withheld been iuc it met applicable statutory
provision? permitting mm-ditclosarc.

I farther certify that carted income from outside employment and honoraria and the acceptance of gtfb which have been reported art in
compliance with the provision* of 5 U.S.C. app. 5 501 et. 5cq., 5 U.S.C. 5 7353, and Judicial Conference regulation*.

NOTE: ANY INDIVIDUAL WHO KNOWINCI.Y AND WILFUIXY FALSIFIES OR FAILS TO FILE THIS RKPOftT MAY BE SUBJECT TO CIVIL
AND CRIMINAL SANCTIONS (5 U.S.C. app, § 104)

FILING INSTRUCTIONS

Mail signed original and 3 additional copies to:

Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301

One Columbus Circle, N.E.

Washington, D.C 20544

553

FINANCIAL STATEMENT
NET WORTH

Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank
accounts, real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts,
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate members of your
household.

Cash on hand and in banks

102

052

U.S. Government securities - U,S. Treasury
STRIPS

82

334

Listed securities - sec schedule

3

503

541

Unlisted securities

Accounts and notes receivable:

Due from relatives ami friends

LIABILITIES

Notes payable to banks-secured

82 334 N° tcs payable to banks-unsectired

Notes payable to relatives

Notes payable to others
Accounts and bills due
Unpaid income tax

554

FINANCIAL STATEMENT
NET WORTH SCHEDULES

Listed Securities

Abbott Laboratories $47,138

Aflac Inc. 40,024

Air Products & Chemicals Tnc. 29,992

Altria Group, Inc. 55,306

American Express Co. 35,640

Anglo American PLC ADR 21,624

Ansheuser-Busch Inbev Spons 15,128

Ansys Inc. 9,856

AOL Inc 626

Apple Inc. 17,660

Automatic Data Processing Inc. 77,000

Avon Products Inc. 72,194

Bank of America Corporation 28,822

Drinker Inti. Inc. 22,339

Bristol Myers Squibb Co. 38,431

CH Energy Group, Inc. 12,714

Chevron Corp. 66,711

Coca-Cola Co 63

Dominion Resources Inc. 24,868

E.I. Du Pont De Nemours & Co 47,736

Electronics NS Spon ADR 196

Emerson Electric Co 77,856

Exxon Mobil Corp 72,786

Frontier Communications Corp 1 ,494

General Electric Co 94 1

General Mills Inc 176,192

Glaxosmithkline PLC SP ADR 24,942

Hubbell Inc Class B 34,970

Intel Corp 5,238

IBM 70,579

Johnson & Johnson 16,588

Koninklijke Philips 7,226

Kraft Foods Inc Class A 42, 1 24

Linear T echnology Corp 46,483

Medco Health Solutions Inc. 21,076

Merck & Co Inc 26,870

Meridian Bioscience Inc 8,628

Microsoft Corp 70,171

Moodys Corporation 5,295

Norfolk Southern Corp 107,607

PepsiCo Inc 5,580

Philip Morris Inti. Inc. 63

Piedmont Natural Gas 24,752

Plum Creek Timber Co 6,294

Praxair Inc. 26,832

Proctor &. Gamble Co 3 1 ,525

555

Royal Dutch Shell PLC ADR 1 0,837

Sysco Corp 13,200

3M Company 1 1,620

Time Warner Inc 12,720

Time Warner Cable Inc 5,990

Total S.A. Spons ADR 4,965

US Bancorp Del 7,376

Union Pacific Corp. 1 8, 1 27

Verizon Communications 27, 1 36

Vodafone Group PLC Spons 1 7, 1 72

Wal-Mart Stores Inc 22,559

Walt Disney Co 33,723

Weyerhaeusser Co. 29,292

Alliance Capital Growth 13,250

Citibank Bank Deposit Program 1 ,0 1 0

DWS Communications Fund Class A 3,954

Fidelity Growth and Income Retirement Fund 75 1,379

Invesco Constellation Fund Class A 1 3,959

iShares MSC1 Emg Mkts Index Fund 5,723

iShares MSCI Australia Index Fund 42,245

Legg Mason CB Large Cap Growth 8, 1 25

Legg Mason Global Currents 21,969

Merrill Lynch High Income Fund 300,51 7

MFS Total Return 29,148

Putnam Income Fund 9,26 1

Putnam Voyager Fund Inc. Cl. A 22,206

S.A. 1 Year Fixed no MVA 5,329

S.A. Inti. Grw& Income 19,308

Sun American Capital Appreciation 23,992

Vanguard Msci Emerging Mkts 29,099

Washington Mutual Investors Fund Cl. A 44,159

Western Asset NY Muni Money Market Fund Cl A 368, 011

Total Listed Securities $3,503,541

Real E st ate Owned

Persona! residence $2,800,000

Second residence 250,000

Total Real Estate Owned $3,050,000

3

556

AFFIDAVIT

X, /?4AC.tJ ,

that the information provided in this statement is,
of my knowledge, true and accurate.

do swear
to the best

/dJL 7 x*rf

(DATE) /

2 _

( NOTARY)

Z/7/ U

Frank ArthonyChWato

Notary Public, Stata ol New York
No. 01 CH61 74970
CKrallflad In Wnfl County
Commission Expires 10/01/2011

557

Senator COONS. Thank you, Mr. Kuntz.

Judge Cain.

STATEMENT OF HON. TIMOTHY M. CAIN, NOMINEE TO BE

DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA

Judge Cain. Thank you, Senator Coons, for presiding at this
hearing today. Thank you, Senator Grassley, and my thanks to
Senator Leahy for scheduling these hearings and for the important
work of the full Committee. I also want to thank the President for
his nomination and also Senator Graham for his kind introduction.

With me today, as he indicated, are my wife of 25 years, Renee,
right behind me, and my son, Martin, with the new suit. He is a
freshman at Walhalla High School in Walhalla, South Carolina,
and he is here with the consent of his principal, Ms. Hughes, and
his teachers. And so I thank them for their kindness.

Briefly, I would just like to acknowledge some folks at home in
South Carolina who are probably watching today: my parents, Har-
ris and Helen Cain, who could not be here for medical reasons and
health reasons; and my sister, Sandra Mullican, who is actually
taking my father for a doctor’s appointment today; and my sister,
Pamela Carpenter; my wife’s parents, Louis and Betty Patterson;
and all of my brothers and sisters and colleagues in the South
Carolina judiciary, for all the hard work that they do. Thank you.

[The biographical information of Judge Cain follows:]

558

UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY

QUESTIONNAIRE FOR JUDICIAL NOMINEES

PUBLIC

1. Name : State full name (include any former names used).

Timothy Martin Cain

2. Position : State the position for which you have been nominated.

United States District Judge for the District of South Carolina

3. Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.

Oconee County Courthouse
P.O. Box 678
205 West Main Street
Walhalla, South Carolina 29691

4. Birthplace : State year and place of birth.

1961; Seneca, South Carolina

5. Education : List in reverse chronological order each college, law' school, or any other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.

1983 - 1986, University of South Carolina School of Law; J.D., 1986

1981 - 1983, University of South Carolina; B.S., 1983

1 979 - 1980, Anderson College; no degree received

6. Employment Record : List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation
from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.

559

2000 - present

South Carolina Judicial Department
1015 Sumter Street
Columbia, South Carolina 29201
Family Court Judge

1993-2000
Timothy M. Cain, P.A.

339 ByPass 123
P.O. Box 698

Seneca, South Carolina 29679

Owner (professional association established for purpose of representing my interest in the
LLPs with which I practiced during this period; the association ceased activity in 2000
and was formally dissolved in 2003)

1992- 2000
Oconee County

415 South Pine Street
Walhalla, South Carolina 29691

County Attorney (served as appointed County Attorney while maintaining my private law
practice)

1998-2000

Fedder, Cain and Norton, L.L.P.

339 ByPass 123
P.O. Box 698

Seneca, South Carolina 29679
Partner

1996-1998

Ballenger, Fedder, Cain and Norton, L.L.P.

339 ByPass 123
P.O. Box 698

Seneca, South Carolina 29679
Partner

1993- 1996
Fedder & Cain
339 ByPass 123
P.O.Box 698

Seneca, South Carolina 29679
Partner

2

560

1991 - 1993

Brandt, Fedder, Graham & Cain
339 ByPass 123
P.O. Box 698

Seneca, South Carolina 29679
Partner

1990™ 1991
Brandt & Fedder
339 ByPass 123
P.O. Box 698

Seneca, South Carolina 29679
Associate

1988-1989

Solicitor’s Office, Tenth Judicial Circuit
Oconee County Courthouse
21 1 West Main Street
Walhalla, South Carolina 29691
Assistant Solicitor

1986-1988

Miley & Macaulay (firm became known as Miley, Macaulay & Cain during this time)

P.O. Drawer 428

Walhalla, South Carolina 29691

Associate

1987

Oconee Defender Corporation
N. Gruber Sires, Jr., Public Defender
P.O. Box 1277

Seneca, South Carolina 29679
Assistant Public Defender

1985-1986

Fifth Circuit Solicitor

1710 Main Slreet

Columbia, South Carolina 29201

Law Clerk

1985

Kligman & Fleming
1408 Bull Street

Columbia, South Carolina 29201
Law Clerk

3

561

1983- 1985

Office of Resident Student Development
University of South Carolina
1215 Blossom Street
Columbia. South Carolina 29208
Residence Hall Director

1984- 1985

University of South Carolina
1215 Blossom Street
Columbia, South Carolina 29208
Senior Desk Assistant, Towers Area Office

Summer 1984

South Carolina Employment Security Commission
1 550 Gadsen Street
Columbia, South Carolina 29201
Summer Clerk

Summer 1 983

Beacon Manufacturing Company
1 1 0 Parkview Street
Westminster, South Carolina 29693
Textile Worker

Other A f filiations (uncompensated!:

1995 - 2000 (approximate)

Oconee Defender Corporation
805 West Main Street
Walhalla, South Carolina 29691
Board Member

1999

South Carolina Association of County Attorneys

No physical address

Secretary

1996

Oconee County Bar Association
P.O, Box 846 '

Walhalla, South Carolina 29691
President

4

562

1990 - 1994

Carolina-Georgia Blood Center
5 1 5 Grove Road

Greenville. South Carolina 29605
Board of Trustees

1989- 1992

United Way of Oconee County
409 East North 1st Street
Seneca, South Carolina 29678
Board of Directors

7. Military Service and Draft Status : Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.

J did not serve in the armed forces. I registered with the Selective Sendee.

8. Honors and Awards : List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society' memberships, military awards, and any other
special recognition for outstanding service or achievement.

Recognition and award for service as County Attorney for Oconee County, 2000
Award for Outstanding Community Service, Board of Trustees, Carolina-Georgia Blood
Center, 1994

Honorary Membership, Oconee Chapter, Fraternal Order of Police, 1993

Doyle Memorial Scholarship, 1979 - 1986

Moot Court, University of South Carolina School of Law, 1985

Citation for Academic Excellence in Scholarly Writing, given by the Faculty, College of
Criminal Justice, University of South Carolina, 1984
Alpha Phi Sigma, National Criminal Justice Honor Society, 1981 - 1983
South Carolina Criminal Justice Association, 1981 - 1983
Dean’s List, 1980- 1982

9. Bar Associations . List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.

Anderson County Bar Association, 2000 — present

Family Court Advisory Committee to the Chief Justice of the South Carolina Supreme
Court, 2009 - present

National Council of Juvenile and Family Court Judges, 2000 - present
Oconee County Bar Association, 1 986 — present
President, 1996

Family Court Bench-Bar Liaison Committee, 1998-2000

5

563

Committee to study preliminary hearing procedures in criminal cases in Oconee
County, 1991

Oconee County Magistrate Selection Advisory Committee. 1993
Oconee Defender Corporation

Board Member, approx. 1 99S - 2000
South Carolina Association of County Attorneys, 1 997 - 2000
Secretary, 1999

South Carolina Bar Association, 1986 - present.

South Carolina Conference of Family Court Judges, 2000 - present

Member, Brown-Buchan-Jacobs Achievement Award Committee, 2008 - present
South Carolina Families for Kids Bench-Bar II Conference, 2002

10. Bar and Court Admission :

a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.

South Carolina, 1986

There has been no lapse in membership.

b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
in membership. Give the same information for administrative bodies that require
special admission to practice.

United States District Court for the District of South Carolina, 1993
South Carolina Supreme Court, 1986
South Carolina State Courts, 1 986

There have been no lapses in membership.

1 1 . Memberships :

a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 1 0 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership or participation, and indicate any office you held.
Include clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.

Carolina-Georgia Blood Center

Board of Trustees, 1990 - 1994

Chickasaw Point Property Owners' Association, 1993 - present
Falcon’s Lair Community Service Association, 2004 - present

6

564

Loca! Elementary School

Parent-Teacher Student Team, 2001 - 2007
School Improvement Council, 2005 - 2007
Local Middle School

Parent-Teacher Organization, 2007- 2010
Oconee Assembly, approximately 1999 -2009
Phi Alpha Delta Law Fraternity, International, 1984 - 1986
Saint Luke United Methodist Church, Walhalla, SC

Administrative Council, 1994- 1995; 1997- 1998; 201 1
Chair, Pastor-Parish Relations Committee, 2002 - 2004
Member, Finance Committee, Administrative Council, 2002 - 2004
Member, Community Outreach Committee, 2006-2007; 201 1 (Chair)

SC First Steps To School Readiness

Oconee County First Steps Partnership Selection Forum, 2000
United Way of Oconee County

Budget Allocations Committee, 1988 - 1989
Board of Directors, 1989- 1992

b The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion, or national
origin. Indicate whether any of these organizations listed in response to 11a above
currently discriminate or formerly discriminated on the basis of race, sex, religion
or national origin either through formal membership requirements or the practical
implementation of membership policies. If so, describe any action you have taken
to change these policies and practices.

From 1 984 to 1 986, i was a member of the Phi Alpha Delta Fraternity. I
understand that the Fraternity discriminated on the basis of race until approximately
1 950, and on the basis of gender until 1 972. It no longer discriminated on these
bases when I became a member.

To the best of my knowledge, none of the other organizations listed in question
1 la currently discriminates or formerly discriminated on the basis of race, sex,
religion or national origin.

12. Published Writings and Public Statements :

a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
materia) published only on the Internet, Supply four (4) copies of all published
material to the Committee.

None that I have been able to recall or identify.

7

565

b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of oil behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, give the
name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.

in 2010, at the request of the general counsel for the South Carolina Guardian ad
Litem Program, the South Carolina Family Court Advisory Committee to the
Chief Justice of the South Carolina Supreme Court endorsed language I authored
for inclusion in court orders for substitution of lay guardians or attorneys in child
abuse and neglect actions. As a result, this language is now included in such
orders issued statewide in South Carolina. A copy of the March 29, 2010 request
memo with my language is supplied.

In 2002, 1 participated in meetings and group discussions with other judges,
agency representatives and attorneys as a part of the S.C. Families for Kids
Bench-Bar II Committee. These meetings were facilitated by the Children's Law
Office, University of South Carolina. The purpose of the committee was to
review (he current status of statutes and practices, looking for unintended
consequences, and possibly recommend new reforms to improve the
administration of justice to abused and neglected children and their families. A
copy of the May 2002 Interim Recommendations issued by the Committee is
supplied.

c. Supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.

November 5, 2009: 1 testified before the South Carolina Judicial Merit Selection
Commission about re-confirmation by the state legislature as a Family Court judge.
Additionally, 1 also submitted a questionnaire to the Commission about my
qualifications to be a judge. A copy of my testimony and questionnaire are supplied.

September 22, 2003: 1 submitted a questionnaire !o the Commission about my
qualifications to be a judge. 1 was not required to appear before the Commission in
person because no other individuals submitted applications for my seat. A copy of
my questionnaire is supplied.

April 4, 2000: 1 appeared before the Oconee County Council to discuss space
problems in the local courthouse. 1 have no notes, transcript or recording. Press
coverage and Council meeting minutes supplied.

November 9, 1999: 1 testified before the South Carolina Judicial Meril Selection
Commission about confirmation by the state legislature as a Family Court judge.

8

566

Additionally, I also submitted a questionnaire to the Commission about my
qualifications to be a judge. A copy of my testimony and questionnaire are supplied.

During the time 1 represented the County of Oconee and various municipal
governments and local government entities, I was required to give fonnal and
informal legal advice and opinions concerning various matters which often required
interpretation of statutory and case law. Legal advice was, at limes, provided in
open session and at other times, in executive session when warranted.

d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by you, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk. If you do not have a copy of the speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.
If you did not speak from a prepared text, furnish a copy of any outline or notes
from which you spoke.

During my time as a practicing attorney, I would, from time to time, be asked to
speak to various school, civic and church groups concerning topics such as how to
pursue a career in the law, the practice of law or estate planning. Since becoming
ajudge, I have participated in various Continuing Legal Education Seminars,
panel discussions and programs, both at a local level and statewide. The items
listed below represent speeches or talks I have identified through searches of my
files, internet databases, discussions with others and my memory. I have
attempted as best I can to list all such items However, there may be other
speeches, talks or presentations I have been unable to locate or remember.

March 19, 2010: Presenter and panelist, Oconee County Bar Continuing Legal
Education Seminar. I introduced guest speaker Lesley Coggiola and also
participated in a roundtab'le discussion entitled, “A View from the Bench,” about
best practices in court. 1 have no notes, transcript or recording. The address of
the bar association is P.O. Box 846, Walballa, South Carolina 29691.

February 16, 2010: I administered the oath of office to a group of volunteers who
had completed training through the South Carolina Volunteer Guardian ad Litem
Program. 1 made some informal remarks prior to administration of the oath but
used no outline or notes and have no record or transcript, The address of the
program is Division of Children's Services, Office of the Governor, 1205
Pendleton Street, Suite 333, Columbia, South Carolina 29201 .

August 26, 2009: 1 swore in a newly elected Oconee County Council member. I
have no notes, transcript or recording- The address for the Council is 415 South
Pine Street, Walhalla, South Carolina 29691 .

9

567

July 7, 2009: 1 swore in two Oconee County officials, the Auditor and Treasurer,

1 have no notes, transcript or recording. The address for the officials is 415 South
Pine Street, Walhalla, South Carolina 29691.

May 1, 2009: Panelist, Oconee County Bar Continuing Legal Education Seminar.

I have no notes, transcript or recording. The address of the bar association is P.O.
Box 846, Walhalla, South Carolina 29691.

January 6, 2009: 1 swore in the new Oconee County Council members. 1 have no
notes, recording or transcript. The address for the Council is 41 5 South Pine
Street, Walhalla, South Carolina 29691,

December 11, 2008; Speaker, West Oak High School Beta Club induction
ceremony for new members. Speech text supplied.

December 4, 2008: Discussion on the three branches of government and how the
judicial system works, Calhoun Academy of the Arts, Ajnderson, South Carolina.

1 have no notes, transcript or recording. The address of the academy is 1520 East
Calhoun Street, Anderson, South Carolina 29621.

2008: Quest lecturer at Anderson University. Department of Criminal Justice -
Juvenile Law. I have no notes, transcript or recording. The address of the
university is 316 Boulevard, Anderson, South Carolina 29621.

January 2, 2007: I swore in two new Oconee County Council members. I have no
notes, recording or transcript. The address for the Council is 415 South Pine
Street, Walhalla, South Carolina 29691.

February 24, 2006: Lecturer, Legal Education Seminar, Oconee County Bar. 1
spoke on Pre-Trial Matters. Materials supplied.

January 4, 2005: 1 swore in the Oconee County Council members. 1 have no
notes, transcript or recording. The address for the Council is 4 15 South Pine
Street, Walhalla, South Carolina 29691 .

December 10, 2004: Speaker, Seminar for Chief Administrative Judges, South
Carolina Circuit and Family Courts. My presentation was entitled, ‘'Ex Parle
Communications.” Materials supplied.

December 5, 2003: Seminar faculty. South Carolina Family Court Bench/Bar
Continuing Legal Education Program, SC Bar Association. My topic was “Life in
Family Court.” A copy of my outline is supplied.

March 2002: Discussion on the three branches of government with emphasis on
the judicial branch, Westminster Elementary School. 1 have no notes, transcript

10

568

e.

or recording. The address of the school is 206 Hamilton Drive, Westminster,
South Carolina 29693.

March 2000: Joint Anderson-Oconee Bar Associations Forum on Practice and
Procedure, roundtable discussion, Tri-County Technical College, Pendleton,

South Carolina. I have no notes, transcript or recording. The address of the
Oconee County Bar Association is P.O. Box 846, Walhalla, South Carolina
29691 . The address of the Anderson County Bar Association is c/o Nancy Jo
Thomason, P.O. Box 4025, Anderson, South Carolina 29622.

September 2000: Lecturer, continuing legal education seminar at Clemson
University. My topic was “A View of Ethics from the Bench."’ I have no notes,
transcript or recording. The address of the university is 109 Daniel Drive,
Clemson, South Carolina 2963 1 .

April 14, 2000: Investiture ceremony as Family Court judge. 1 made brief
remarks, but have no notes, transcript or recording. The address of the courthouse
is P.O. Box 678, 205 West Main Street, Walhalla, South Carolina 29691 ,

January 1997: 1 assisted in the presentation and was one of the moderators of an
Ethics Program for the Oconee County Bar entitled, “The Case of the Silent
Alarm - A Study in Professionalism.” The program was based on a seminar
approved by the Georgia State Bar. I have no notes, transcript or recording. The
address of the bar association is P.O. Box 846, Walhalla, South Carolina 2969 ! .

From 2006 to 2010, 1 served as an instructor at the Orientation School for New
Family Court Judges. A copy of mv most recent outline and materials for these
presentations is supplied.

I have also addressed volunteers at training workshops for the South Carolina
Volunteer Guardian ad Litem Program periodically since 2001. I have no notes,
transcript or recording. The address of the program is Division of Children’s
Services, Office of the Governor, 1205 Pendleton Street, Suite 333, Columbia,
South Carolina 29201 .

Additionally, 1 have occasionally spoken to the Anderson and Oconee County Bar
Associations about rules of practice and procedure in Family Court. 1 have no
notes, transcript or recording. The address of the Oconee County Bar Association
is P.O. Box 846, Walhalla, South Carolina 29691 . The address ofthe Anderson
County Bar Association is c/o Nancy Jo Thomason, P.O. Box 4025, Anderson,
South Carolina 29622.

List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.

11

569

As Oconee County Attorney and as a judge, ] have spoken with the press on
several occasions. I have attempted to create a complete list of articles in which 1
was quoted through searches of news databases, my files and the Internet. There
may, however, be other articles I was unable to recall or locate.

Ray Chandler, Graham 1o Push Federal Judgeship for Oconee Family Court
Judge Tim Cain, Anderson Independent-Mail, Aug. 28, 2010. Copy supplied.

Carlos Galarza, The Catch-22 of Child Support, The Daily Journal, Aug. 16-17,
2008, at 1A. Copy supplied.

David Williams, Oconee's Stoudemire Retires After 21 Years from Program
Providing Guardians for Children , Anderson Independent-Mail, Mar. 4, 2008.
Copy supplied.

David Williams, Best ‘Wurst ' Draws Crowd to Oktoberfest, Anderson
Independent-Mail, Oct. 22, 2005, at BI. Copy supplied.

David Williams, Oconee Three-Ribbon Rally Raises Abuse Awareness , Anderson
Independent-Mail, Apr. 3, 2004, at Bl . Copy supplied.

David Williams, Animal Control Gets New Officer , Anderson Independent-Mail,
Dec. 16, 1999. Copy supplied.

David Williams, Negotiations for Newry to Continue, Anderson Independent-
Mail Sept. 2, 1999. Copy supplied.

Pat Willis, Graham Keeps Moving Ahead, Augusta Chronicle, Mar. 14, 1999, at
A 19. Copy supplied.

Terry Cregar, Oconee May Subsidize Seneca for Newry Sewer Service, Greenville
News, Jan. 23, 1 999, at I B. Copy supplied.

Terry Cregar, Oconee Sheriff Sued Over Arrest, Greenville News, Jan. 6, 1999, at
2B. Copy supplied.

Brian Suber, Oconee Approves Land Sale to Pickens for Treatment Facility,
Anderson Independent-Mail, July 3, 1998. Copy supplied.

In August 2006, 1 was interviewed by a representative of GQ Magazine but was
not quoted in the subsequent article.

Additionally, Duke Energy Corporation operates a nuclear power facility in
Oconee County, S.C. Pursuant to federal law and regulations, the company is
required to cooperate with local governments in the establishment of emergency

12

570

operation procedures to be implemented in case of an event at its facility which
would require public notification and action, to include evacuation of affected
areas, if necessary As general counsel for Oconee County, I was designated as a
Public Information Officer to assist in the coordination and dissemination of
information to the public in the event of an emergency requiring some action.
Although I do not recall making and have not located any public statements or
announcements made by me in this capacity, there may have been occasions that
public announcements or statements were made or interviews given as a part of
regular training exercises in which I participated.

13, Judicial Office : State (chronologically) any judicial offices you have held, including
positions as an administrative law judge, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.

In 2000, I was elected 1o serve as a Family Court Judge, Tenth Judicial Circuit, by the
South Carolina General Assembly and fulfilled the unexpired term of my predecessor.
The Genera! Assembly re-elected me to the Family Court Bench in 2004 and 2010.

The South Carolina Family Court has jurisdiction to address all issues involving domestic
or family relationships. This includes cases concerning marriage, divorce, child custody,
visitation rights, support, alimony, child abuse and neglect, termination of parental rights,
adoption, division of marital property, change of name, protection of vulnerable adults,
actions involving the Uniform Child Custody Jurisdiction and Enforcement Act, the
enforcement of Orders issued under Title !V-D of the Social Security Act and the
Uniform Interstate Family Support Act and related matters. This Court generally has
exclusive jurisdiction over minors under the age of seventeen alleged to have violated
any state law or municipal ordinance, and the waiver of certain cases to adult criminal
court.

The Chief Justice of the South Carolina Supreme Court appointed me to serve as the
Chief Administrative Judge for the Family Court, Tenth Judicial Circuit, in 2005, 2008
and 201 1.

1 have also served, by designation of the Chief Justice, as an Acting Associate Justice for
the South Carolina Supreme Court on several occasions.

a. Approximately how many cases have you presided over that have gone to verdict
or judgment?

The types of hearings in Family Court include motions for temporary relief,
contempt hearings and trials. Contested trials may last from fifteen minutes to
two weeks. I have presided and conducted trials in seventeen counties throughout
the State of South Carolina, and I would estimate that 1 have presided in
approximately 10,000 hearings, including approximately 6,000 trials.

13

571

i. Of these, approximately what percent were:

jury trials:

0%

bench trials:

1 00%

civil proceedings:

75%

criminal proceedings:

25%

Pursuant to South Carolina law, actions in Family Court are tried before a judge
without a jury.

b. Provide citations for all opinions you have written, including concurrences and
dissents.

In my capacity as a Family Court Judge, I have issued numerous decisions at the
trial court level. I have attempted to compile a list of all of my opinions, but due
to limitations inherent in the court’s storage practices and technological
capabilities, I was unable to generate an exhaustive list. The attached lists
represent my best efforts to supply citations to as many of my opinions as is
possible.

(The attached list does not include rulings made from the bench and incorporated
into an order drafted by counsel, or cases in which I prepare an Order
Memorandum setting forth rulings on factual and legal issues which is sent to the
attorneys with a request that an order be prepared incorporating those rulings.
Lists of citations for these additional categories of decisions are available upon
request.)

In addition, in my capacity as an Acting Associate Justice for the South Carolina
Supreme Court, I have concurred in the following opinions:

Hopper v. Terry Hunt Conslr ., 383 S.C. 310, 680 S.E.2d 1 (2009).

Law Firm of Paul L. Erickson, P.A. v. Boykin, 383 S.C. 497, 681 S.E.2d 575
(2009).

Eldridge v, South Carolina Dep’t of Transp., 384 S.C. 548, 683 S.E.2d 483
(2009).

Hiolt v. South Carolina, 381 S.C. 622. 674 S.E.2d 491 (2009).

Stale v. Sweat and Slate v. Bryant, 386 S.C. 339, 688 S.E.2d 569 (2010).

c. For each of the 10 most significant cases over which you presided, provide: (1) a
capsule summary of the nature the case; (2) the outcome of the case; (3) the name
and contact information for counsel who had a significant role in the trial of the

14

572

case; and (3) the citation of the case (if reported) or the docket number and a copy
of the opinion or judgment (if not reported).

I have served as a Family Court judge and Chief Administrative Judge for the
Family Court of the Tenth Judicial Circuit. 1 have also been designated by the
Chief Justice of the South Carolina Supreme Court to preside over certain cases
having notoriety filed outside of my home circuit and have served as an Acting
Associate Justice on the South Carolina Supreme Court. Due to the volume of
cases heard, it would be difficult to designate which of these are most significant.
However, following is a list of cases that may provide a view of the type of issues
1 have addressed as a judge.

(1) Eckstein v. Eckstein, No. 99-DR-42-4914. This case involved a determination
of jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act. A finding
was needed as to whether the State of South Carolina or the State of Oklahoma had
jurisdiction to hear and determine a child custody matter. Upon applying the factors
set forth in the statute, I determined that Oklahoma was tire home state of the minor
child and entered an Order which stayed the custody proceedings in South Carolina
upon condition that a custody proceeding be commenced in the State of Oklahoma
within sixty days.

Richard W. Vieth, attorney for Plaintiff
360 East Henry Street
Spartanburg, SC 29302
(864) 582-2962

Jack W. Lawrence, attorney for Defendant
P.O. Box 5722
Spartanburg, SC 29304
(864) 583-5057

(2) Roddy v. Cleveland, No. 2000-DR-42-2838, Judgment Roll No. 248707. This
case involved an action for termination or reduction of alimony. I ruled that the
Plaintiff did not prove, by a preponderance of evidence, that a substantial and
material change of conditions had occurred since entry of the prior alimony award.
My Order was appealed to the South Carolina Court of Appeals. The ruling was
affirmed in No. 03-UP-l 17 (S.C. Ct. App. 2003).

J. Benjamin Stevens, attorney for Plaintiff
128 Magnolia Street
Spartanburg. SC 29306
(864) 598-9172

15

573

Jim S. Brooks, attorney for Defendant
P.O. Box 6443
Spartanburg, SC 29304
(864)316-1967

(3) Boatright v Hurt, No. 2002-DR-07-572. This case involved an action for a
change of custody of a six-year-old minor child. This was a highly contested matter
that involved testimony from numerous experts. The trial lasted for eight days and
required numerous procedural and evidentiary rulings. Custody was awarded to the
Defendant.

Sally G. Calhoun, counsel for Plaintiff
920 Bay Street, Suite 25
Beaufort, SC 29902
(843) 522-3875

Ken H. Lester, counsel for Defendant
1901 Gadsden Street
Columbia, SC 29201
(803) 252-4700

McLaurin S. Saunders, counsel for Defendant
308 Harden Street
Columbia, SC 29205-3148
(803)779-0288

Joab M. Dowling, Jr., Guardian ad Litem (deceased)

(4) Peeler >>. Peeler, No. 2005-DR-04-2714. This action involved the contested
issues of divorce, equitable distribution of property and debt, attorney fees and costs
and alimony. It was initially filed in the Eleventh Judicial Circuit, Lexington
County, South Carolina. The Plaintiff was the former Lieutenant Governor of the
State of South Carolina and candidate for governor. As a result, the case received
statewide attention from the press and pubiic.

Allhough not assigned to preside in the Eleventh Judicial Circuit at the time the case
was filed and pending, the action was assigned to me by Order of Chief Justice of
the Supreme Court of South Carolina. The order vested me with exclusive
jurisdiction to hear and dispose of the case, including all pre-trial motions and other
matters pertaining thereto, regardless of where 1 might be assigned to hold court.
Venue was transferred to Anderson County, and I proceeded to schedule a pre-trial
status conference so as to address the pre-trial and procedural issues, implement a
Scheduling Order and place the case in a posture for trial. Numerous motion
hearings were held during the course of this litigation. Evidence included testimony
from numerous witnesses, including experts in various fields. After two days of
trial, the parties resumed settlement negotiations which resulted in an agreement

16

574

which was incorporated into a Final Decree. This file has been sealed by court order
pursuant to Rule 41 . 1 , SC Rules of Civil Procedure, and is not available for copying.

Timothy E. Madden, Attorney for Plaintiff
Poinsett Plaza, 9 lh Floor
1 04 South Main Street
Greenville, SC 29601
(864) 250-2279

J. Michael Taylor, Attorney for Plaintiff
2301 Devine Street
Columbia, SC 29205
(803) 376-2001

Jan L. Warner, Attorney for Defendant (deceased)

P.O. Box 2628
Columbia, SC 29202

Janies T. McLaren, Attorney for Defendant
1 508 Laurel Street
Columbia, SC 29201
(803) 799-3074

J. Franklin McClain, Attorney for Defendant
40! South Main Street
Anderson, SC 29624
(864)231-1137

Danyese Hobbs, Guardian ad Litem
2640 Gervais Street, Suite C
Columbia, SC 29204
(803)771-2181

(5) Gulledgev. Gulledge, No. 2007-DR-04-814. This action involved the issues of
divorce, child custody and visitation, equitable distribution of real and personal
property', equitable distribution of debt, attorney fees and costs. Guardian ad Litem
fees and civil contempt. The parties were the owners of a sizable marital estate
which included retirement assets with the South Carolina Retirement System and
South Carolina General Assembly Retirement System. The Plaintiff was a former
member of the South Carolina Legislature and, at the time of trial, a current
employee of the South Carolina Budget and Control Board. The action was initially
filed in the Eleventh Judicial Circuit, Lexington County, South Carolina, in August,
2004. This was a hotly contested case which attracted some degree of public and
press attention due to the allegations in the pleadings and the persons involved.

17

575

The Defendant filed a Motion to have the action assigned to a non-resident or retired
judge outside of the Eleventh Judicial Circuit or, in the alternative, for a change of
venue, which alleged that a fair trial could not be obtained due to alleged “political
influence” of the Plaintiff. By Order of the Chief Justice of the South Carolina
Supreme Court, dated March 23, 2007, the action was assigned to me and venue was
transferred to Anderson County. Following a pre-trial status conference, several pre-
trial hearings and motion hearings were held. The eight-day trial of the action took
place in January and February 2008. Expert testimony was presented in the areas of
psychology, finance and valuation of assets. Several post-trial motions were filed in
this case which resulted in the issuance of several Orders. A copy of my Order
issued as a result of the trial has been provided.

Jan L. Warner, attorney for Plaintiff (deceased)

P.O.Box 2628
Columbia.se 29202

James T. McLaren, attorney for Plaintiff
1508 Laurel Street
Columbia, SC 29201
(803) 799-3074

John O. McDougall, attorney for Defendant
P.O. Box 90860
Columbia, SC 29290
(803) 776-3130

Peter G, Currence, attorney for Defendant
P.O. Box 90860
Columbia, SC 29290
(803)776-3130

Gwyn DuBose-Schmitt, Guardian ad I.ilem
334 Old Chapin Road
Lexington, SC 29072
(803) 957-4994

(6) Thrasher v. Price , No. 2007-DR-04-2759. This was a contested custody action
between the grandparents and parents of a tliree year old child. The claims of the
parties required an analysis of constitutional issues surrounding the custody claims
of the non-parents, the rights of the biological parents and the interests of the minor
child. The Order granted custody of the child to the paternal grandfather and his
wife.

18

576

Ivan James Toney, counsel for Plaintiffs
P.O. Box 10302
Greenville, SC 29603
(864)298-0071

David J. Brousseau, counsel for Defendants R. Michael Price and Stephanie Price
P.O. Box 197
Anderson, SC 29621
(864) 225-0001

W. Norman Epps, III, counsel for Defendant Heather Hooper
P.O. Box 2167
Anderson, SC 29622
(864) 224-3536

Mary Jane Goodwin, Guardian ad Litem
1 13 North Main Street
Anderson, SC 29621
(864) 375-0909

(7) 1 Vaelzigv. Waelzig, No. 2008- DR-04- 1822. This case involved the issue of
whether or not the trial court should set aside a Qualified Domestic Relations Order
entered into by written stipulation and consent upon a motion filed pursuant to Rule
60(b)(1) ofthe SC Rules of Civil Procedure on the grounds of mistake, inadvertence,
surprise, or excusable neglect. Upon applying the provisions of Rule 43(K), SC
Rules of Civil Procedure, and established precedent, 1 determined that the provisions
of Rule 60(b)(1) did not apply and denied the Defendant’s Motion to alter the
previous Order.

Joy Davis, attorney for Plaintiff
412 Marshall Avenue
Anderson, SC 29621
(864) 231-8090

Druanne White, attorney for Plaintiff
412 Marshall Avenue
Anderson, SC 29621
(864) 231-8090

Sarah G. Drawdy, attorney for Defendant
23 1 5 North Main Street, Suite 1 1 7
The Regency Building
Anderson, SC 29621
(864)261-3977

19

577

(8) In the Interest ofB.C., No. 2008-JU-37-107. The Juvenile-Defendant was
charged with offense of Armed Robber)'. He was sixteen years of age at the time of
the offense. The State moved to have the case transferred from the jurisdiction of
the Family Court to the Circuit Court so as to have the Juvenile tried as an adult. A
review of the factors set forth in Kent v. United Stales , 383 U.S. 54 1 (1 966) was
required in this case. After the receipt of testimony and a review' of the
psychological reports and other information presented, a determination was made to
deny the State’s motion and retain jurisdiction in Family Court.

Blair L. Stoudemire, attorney for Plaintiff

Tenth Circuit Solicitor's Office

415 South Pine Street

Walhalla, SC 29691

(864) 638-4294

W. Wilson Burr, attorney for Juvenile-Defendant
Oconee County Public Defender’s Office
41 5 South Pine Street
Walhalla, SC 29691

(9) Law Firm of Paul L. Erickson, P.A. v. Boykin, 681 S.E.2d 575, 383 S.C. 497
(2009). 1 served as an Acting Associate Justice for the South Carolina Supreme
Court in this case. An out of state judgment creditor filed a motion in the South
Carolina Circuit Court to enforce a North Carolina default judgment. The judgment
debtors filed a motion for relief from the judgment. The South Carolina Court of
Appeals affirmed the ruling of the Circuit Court, which granted the debtors relief
from the judgment. The Supreme Court reversed, thereby overruling prior
precedent, and held that the section of South Carolina’s Uniform Foreign Judgments
Act, which placed the burden of proving a foreign judgment is entitled to full faith
and credit upon the judgment creditor, violated Article IV, Section 1, of the United
States Constitution.

Karl H. Smith, attorney for Petitioner
508 South Fourth Street
Hartsville, SC 29550
(843)332-4700

Paul L. Erickson, attorney for Petitioner
1998 Hendersonville Road
Building 1, Suite 3
Asheville, NC 28803

Carolyn R. Hills, attorney for Respondent
4701 Oleander Drive
Myrtle Beach, SC 29577-5762
(843) 626-2600

20

578

( 1 0) Butts v. South Carolina Dep 7 of Soc. Servs . , No. 2009-DR-37-209. Tliis case
involved an appeal from a determination made by the South Carolina Department of
Social Services to enter the name of the Plaintiff in the Centra! Registry of Abuse
and Neglect. After an administrative hearing, the Hearing Officer upheld the
determination by the Agency to enter the Plaintiffs name in the Central Registry.
Pursuant to the South Carolina Administrative Procedures Act, the Plaintiff appealed
the Order of the Administrative Hearing Officer to the Family Court. As the
Appellate Court in this instance, I was required to determine if the substantial rights
of the Appellant had been prejudiced and if the administrative findings, inferences,
conclusions or decisions were (a) in violation of constitutional or statutory
provisions; (b) in excess of the statutory authority of the agency; (c) made upon
unlawful procedure; (d) affected by other error of law; (e) clearly erroneous in view
of the reliable, probative and substantial evidence on the whole record; or (f)
arbitrary or capricious or clearly unwarranted exercise of discretion. The Plaintiff
also asserted that the findings by the Agency and Administrative Hearing Officer
constituted cruel and unusual punishment in violation of the Eighth Amendment to
the United States Constitution. After a final hearing, the determinations of the
Agency and the Administrative Hearing Officer were upheld.

Bradley A. Norton, attorney for Plaintiff
P.O. Box 490
Walhalla, SC 29691
(864) 638-2930

Karen F. Ballenger. attorney for Plaintiff
P.O. Box 490
Walhalla,SC 29691
(864) 638-2930

Susan Anderson, attorney for Defendant
P.O. Box 1520
Columbia, SC 29202
(803) 898-7368

d. For each of the 10 most significant opinions you have written, provide: (1)

citations for those decisions that were published; (2) a copy of those decisions that
were not published; and (3) the names and contact information for the attorneys
who played a significant role in the case.

( 1 ) Hartman v. Burdette, et al . , No. 2000-DR-37-527. Copy provided.

Ronnie J. Treadwell, co-counsel for Plaintiff
510 East Calhoun Street
Anderson, SC 29621
(864) 224-9750

21

579

Floy Kenyon Anderson, co-counsel for Plaintiff
P.O. Box 1286
Anderson, SC 29622
(864) 224-2596

Raymond E. MacKay, counsel for Defendant
1301 Ella Street
Anderson, SC 29621
(864) 225-4495

Charles R. Hughes, Guardian ad Litem
P.O. Box 2003
Seneca, SC 29679
(864) 888-4807

(2) Davis t>. Davis, No. 2000-DR-37-63. Copy provided.

R. Scott Dover, counsel for Plaintiff
P.O. Box 462
Pickens, SC 29671
(864) 878-0662

Julian L. Stoudemire, counsel for Defendant
P.O. Box 99
Seneca, SC 29679
(864) 882-1480

Karen G. Pruitt, Guardian ad Litem
201 Werner Street
Central, SC 29630
(864) 639-1800

3. Anderson v. Tolley, No. 2001-DR-37-146. Copy provided.

Pamela E. Deal, counsel for Plaintiff
P.O. Box 1764
Clemson, SC 29633
(864)654-1699

Julian L. Stoudemire, counsel for Defendant
P.O. Box 99
Seneca, SC 29679
(864)882-1480

22

580

(4) Miller v. Miller , No. 2002-DR-37-554. Copy provided.

Julian L. Stoudemire, counsel for Plaintiff
P.O. Box 99
Seneca, SC 29679
(864) 882-1480

J. Redmond Coyle, counsel for Defendant (deceased)

P.O. Box 898
Pickens, SC 29671
(864) 878-3514

(5) Long v. Long , No. 2002-DR-37-1 16. Copy provided.

R. Scott Sprouse, counsel for Plaintiff
P.O. Box 99
Seneca, SC 29679
(864) 882-1480

W.N. Epps, Jt., counsel for Defendant
P.O. Box 2 167
Anderson, SC 29622
(864) 224-2111

Susan S. Reese, Guardian ad Litem
Seventh Circuit Solicitor’s Office
180 Magnolia Street, Third Floor
Spartanburg, SC 29306
(864) 596-2575

(6) Wendt v. Wendt, No. 2002 -DR-3 7-664. Copy provided.

N. Gruber Sires, Jr., counsel for Plaintiff
P.O. Box 1277
Seneca, SC 29679
(864)882-1277

Stuart G. Anderson, Jr., counsel for Defendant
P.O. Box 1 749
Greenville, SC 29602
(864) 233-4566

Amanda H. Craven, counsel for Defendant
P.O. Box 3547
Spartanburg, SC 29304
(864) 585-5100

23

581

Pamela E. Deal, counsel for Third-Party Defendant Sandra E. Wendt
P.0. Box 1764
Clemson, SC 29633
(864) 654-1699

(7) Brunette v. Brunette, No. 2003-DR-37-80. Copy provided.

Karen F. Ballenger, counsel for Plaintiff
P.O. Box 490
Walhalla, SC 29691
(864)638-2930

Julian L. Stoudemire, counsel for Defendant
P.O. Box 99
Seneca, SC 29679
(864) 882-1480

(8) Dept, of Social Services v. A.M.D. arid R.G.D., No. 2003-DR-37-387. Copy
provided.

K. Scott Toussaint, counsel for Plaintiff
P.O. Box 774
Seneca, SC 29679
(864) 888-1900

Stephanie Corley, counsel for Defendant A.D.

P.O. Box 98
Walhalla, SC 29691
(864) 718-0777

Emma W. Morris, counsel for Defendant R.G.D.

P.O. Box 795
Seneca, SC 29679
(864) 882-2747

James L. Williams, counsel for Defendant R.G.D.

P.O. Box 795
Seneca, SC 29679
(846) 882-2747

Blair L. Stoudemire, Guardian ad Litem
Tenth Circuit Solicitor's Office
4 1 5 South Pine Street
Walhalla, SC 29691
(864) 638-4294

24

582

(9) Rowland v. Rowland , No. 2003-DR-04-2601. Copy provided.

W.N. Epps, Jr., counsel for Plaintiff
P.O. Box 2167
Anderson, SC 29622
(864) 224-2111

William C. Hood, counsel for Defendant
505 North McDuffie Street
Anderson, SC 29621
(864) 375-0530

(10) Parnell v. Parnell, No. 2005-DR-46-775. Copy provided.

Joseph D. Matlock, counsel for Plaintiff
P.O.Box 11101
Rock Hill, SC 29731
(803) 985-3989

Thomas F. McDow, counsel for Defendant
P.O. Box 891
Rock Hill, SC 29731
(803)327-4151

e. Provide a list of all cases in which certiorari was requested or granted.

The case of Price v. Turner , 387 S.C. 142, 691 S.E.2d 470 (2010) was appealed to
and affirmed by the South Carolina Supreme Court. A Petition foT Certiorari was
filed with the United States Supreme Court, and was granted on November 1,
2010. The caption in the appeal is Michael D. Turner v. Rebecca L. Rogers, el
al., Docket No. 10-10.

f. Provide a brief summary of and citations for all of your opinions where your
decisions were reversed by a reviewing court or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings. If
any of the opinions listed were not officially reported, provide copies of the
opinions.

(1) Dep 'I of Social Sendees v. Wright, No. 2000-DR-37-1198, rev 'd, UPO No.
02-UP-665 (S.C. Ct. App. 2002). This was an action filed by the South Carolina
Department of Social Services seeking custody of the Defendant’s elderly wife,
who suffered from numerous chronic illnesses. The trial court ruled that the wife
would face a substantial risk ofharm if returned to the care of her husband and
granted the agency custody. The appellate court, using its authority to find facts
in accordance with its own view of the evidence, reversed tire decision of the trial

25

583

court without prejudice to the right of the Plaintiff to file a new action for custody.
Copies of the opinions have been provided.

(2) Crooks v. Crooks, No. 2000-DR-37-406, rev'd, UPO No. 03-UP-447 (S.C. Ct.
App. 2003). This action involved the issues of divorce, equitable distribution of
marital property and debt and child custody. The appellate court affirmed the
ruling of the trial court oil the issues of allocation of credit card debt, set off for
mortgage payments, valuation of a vehicle and home, use and possession of a
vehicle and child custody. However, the court reversed the ruling of the trial
court on Ihe award of certain 40 1 (K) retirement funds and calculation of wife’s
share of the marital home and remanded these issues for reallocation of the
marital estate. Copies of the opinions have been provided.

(3) Lautner v. Lawner , No. 2000-DR-23-2014, rev'd, UPO No. 04-UP-103 (S.C.
Ct. App. 2004). This action involved the issues of divorce, equitable distribution
of property and debt. The court of appeals reversed that portion of the order of
the trial court which included all passive increases to the husband’s retirement
account in the marital estate. The case was remanded to determine which passive
increases should be allocated to the premarital portion of the retirement account.
Copies of the opinions have been provided.

g. Provide a description of the number and percentage of your decisions in which
you issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored.

Each hearing results in a written order. Hearings of limited scope are often
addressed by form order. More extensive trials require detailed orders with
numerous findings. In our court, written opinions are maintained by the Clerk of
Court in each county. In general, those are available to the public; however,
certain types of cases in Family Court are sealed.

h. Provide citations for significant opinions on federal or slate constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, provide copies of the opinions.

Law Finn of Paul Erickson, P.A. v. Boykin, 383 S.C. 497, 681 S.E.2d 575 (2009).
As Acting Associate Justice by designation of the Chief Justice, I concurred in
this opinion of the South Carolina Supreme Court in a case involving application
of the Full Faith and Credit Clause of the United States Constitution.

i. Provide citations to all cases in which you sat by designation on a federal court of
appeals, including a bnef summary of any opinions you authored, whether
majority, dissenting, or concurring, and any dissenting opinions you joined.

I have not sat by designation on a federal court of appeals.

26

584

14. Recusal; If you are or have been a judge, identify the basis by which you have assessed
the necessity or propriety of recusal (If your court employs an "automatic' 1 recusal system
by which you may be recused without your knowledge, please include a general
description of that system.) Provide a list of any cases, motions or matters that have
come before you in which a litigant or party has requested that you recuse yourself due to
an asserted contlict of interest or in which you have recused yourself sua sponte. Identify
each such case, and for each provide the following information:

a. whether your recusal was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any olher person or interested party; or if you
recused yourself sua sponte;

b. a brief description of the asserted conflict of interest or other ground for recusal;

c. the procedure you followed in determining whether or not to recuse yourself;

d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any
other ground for recusal.

The South Carolina Judiciary does not utilize an automatic recusal system.
Decisions concerning recusal are made on a case-by-case basis taking into
consideration the facts and circumstances and applicable rules. Judges utilize the
South Carolina Code of Judicial Conduct contained in the South Carolina
Appellate Court Rules, the Canons of Judicial Ethics, and opinions issued by the
South Carolina Advisory Committee on Standards of Judicial Conduct in making
such decisions.

My practice is such that if I become aware of a conflict of interest by reason of a
dose or personal relationship with a person involved in an action, or determine
that the circumstances give rise to an appearance of impropriety or that my
impartiality might reasonably be questioned, I recuse myself from the case. I do
not mainiain a recusal log. However, I have identified the following cases I have
recused myself from hearing:

Miller v. Miller, No. 2003-DR-37-572. 1 recused myself sua sponte because I had
represented the brother of one of the parties.

Land v. Land , No, 2005-DR-37-231 . 1 recused myself sua sponte because I bad
represented one of the parties.

Harden v. Harden , No. 2005-DR-37-737. I recused myself sua sponte because I
had used the services of a business operated by one of the parties.

Haney v. Haney , No. 2006-DR-37-450. At a temporary hearing, upon reading the
affidavit of one of the parties submitted to the court, I asked counsel to make an

27

585

inquiry as to whether the party desired that 1 recuse myself. When 1 received a
response in the affirmative, I granted the request and recused myself from the
case.

Mann v. Mann, No. 2006-DR-37-500. I recused myself sua sponie upon learning
that the father-in-law of the courtroom security officer normally assigned to me
was a potential witness in the case, and that the officer was a neighbor of one of
the parties.

Woodall v, I¥ooda//,No. 2007-DR-37-162. I recused myself sua sponte from the
equitable distribution trial in this case upon learning that there was a dispute
involving the proposed sale of property to a former client.

Siconofli v. Klein, No. 2007-DR-37-273. 1 recused myself sua sponte because 1
had previously represented one of the parties.

Moore v. Moore, No. 2008-DR-37-526. I recused myself sua sponie because I am
related to one of the parties.

Skelton v. Carilhers, No. 2008-DR-04-2543. I recused myself sua sponie because
the Acting Clerk of Court was related to one of the parties and a potential witness
in the case. All judges in my circuit recused themselves from this case, which
was heard by a judge outside of our circuit.

Tippett v. Tippett, No. 2009-DR-37-352. 1 recused myself sua sponte due to a
church affiliation with the parties.

Cain v. Cain, No. 2010-DR-37-1 7. 1 recused myself sua sponte because of a
possible familial relationship with one of the parties.

Pearson v. Pearson, No. 2010-DR-37-S03. 1 recused myself sua sponte from the
trial of this case because one of the parties is employed with a city recreation
department where 1 formerly coached for several years.

Orr v. Orr, No. 20 1 0-DR-37-655. I recused myself sua sponte because I
previously represented the parent of one of the parlies.

In the event 1 become aware of a potential conflict of interest or possible
appearance of impropriety, 1 disclose the same to the parties and counsel on the
record. 1 then remove myself from the courtroom and return after they have had a
sufficient opportunity' to confer and consider the matter and make decisions as to
my continued involvement in the case. Upon returning to the courtroom, I inquire
of counsel as to their positions and allow them to make any appropriate motions.
If the attorneys indicate that the parties desire that 1 hear the matter, I confirm this
with the parties on the record.

28

586

15. Public Office, Political Activities and Affiliations :

a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, stale chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.

1 992 - 2000: County Attorney for Oconee County, appointed by Norman D.
Crain, the County Supervisor, reappointed by his successor Harrison E. Orr.

I have never had an unsuccessful candidacy for elective or appointed office.

b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election committee. If you have ever
held a position or played a role in a political campaign, identify the particulars of
the campaign, including the candidate, dates of the campaign, your title and
responsibilities.

I have never held an office in a political party or been a member of an election
committee.

16. Legal Career: Answer each part separately.

a. Describe chronologically your law practice and legal experience after graduation
from law school including:

i. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;

I have never served as a clerk for a judge.

ii. whether you practiced alone, and if so, the addresses and dates;

In 1993, 1 formed the professional association of Timothy M. Cain, P.A.
From 1993 through 1996, I practiced under the firm name of Fedder &
Cain, with Mr. Fedder acting as “of counsel’' during a portion of this time.

iii. the dates, names and addresses of taw firms or offices, companies or
governmental agencies with which you have been affiliated, and the
nature of your affiliation with each.

29

587

1985 — J 986
Fifth Circuit Solicitor
1710 Main Street
Columbia, SC 29201
Law Clerk

1987

Oconee Defender Corporation

N. Gruber Sires, Jr., Public Defender

P.O. Box 1277

Seneca, SC 29679

(864) 882-1277

Assistant Public Defender

1986-1988

Miley & Macaulay (firm became known as Miley, Macaulay & Cain during
this time)

P.O. Drawer 428
Walhalla, SC 29691
Associate

1988- 1990

Solicitor’s Office, Tenth Judicial Circuit
Oconee County Courthouse
21 1 West Main Street
Walhalla, SC 29691
Assistant Solicitor

1990-1991
Brandt & Fedder
339 ByPass 123
P.O. Box 698
Seneca, SC 29679
Associate

1991 -1993

Brandt, Fedder, Graham & Cain

339 ByPass 123

P.O. Box 698

Seneca, SC 29679

Partner

30

588

1993-19%

Fedder & Cain
339 ByPass 123
P.O. Box 698
Seneca, SC 29679
Partner

1996-1998

Ballenger, Fedder, Cain and Norton, L.L.P.

339 ByPass 123
P.O. Box 698
Seneca, SC 29679
Partner

1992- 2000
Oconee County

415 South Pine Street
Walhalla, South Carolina 29691
County Attorney

1998-2000

Fedder, Cain and Norton, L.L.P.

339 ByPass 123
P.O. Box 698
Seneca, SC 29679
Partner

1993- 2000
Timothy M. Cain, P.A.

339 ByPass 123

P.O. Box 698
Seneca, SC 29679

Owner (professional association established for purpose of representing
my interest in the LLPs with which I practiced during this period; the
association ceased activity in 2000 and was formally dissolved in 2003)

iv. whether you served as a mediator or arbitrator in alternative dispute

resolution proceedings and, if so, a description of the 1 0 most significant
matters with which you were involved in that capacity.

I recall being designated as an Arbitrator on a three member arbitration
panel in two automobile accident cases in approximately the mid- 1 990s.
However, I did not maintain a file on these matters and have been unable,
through a search of the public records, to locate the files. My recollection
is that the other members of the Arbitration Panel were Larry C. Brandt,

31

589

P.O. Box 638, Walhalla, SC 2969] (864) 638-5406, and The Honorable
Merl F. Code, P.O. Box 2757, Greenville, SC 29602 (864) 271-1300.

3. Describe:

i. the general character of your law practice and indicate by date when its
character has changed over the years.

During my first two years of practice, 1 engaged primarily in civil
litigation involving personal injury, workers compensation and social
security disability, as well as criminal defense and family law. I also had a
general office practice that included assisting clients in such matters as
real estate transactions, wills, partnerships and corporations. I became a
part time Assistant Public Defender and represented clients in Family
Court and Circuit Court charged with felonies and misdemeanors. In
January 1988, 1 accepted a position as a part lime prosecutor while
maintaining my private practice and became a full time prosecutor in June
1988. I represented the State of South Carolina in prosecuting child abuse
and neglect cases in Family Court and Circuit Court and prosecuted
criminal cases of various types involving felonies and misdemeanors in
Oconee and Anderson Counties, as well as civil forfeiture proceedings.

In 1990, 1 joined the firm of Brandt and Fedder, which later became
Brandt, Fedder, Graham and Cain. My primary areas of practice included
litigation in the areas of personal injury, medical malpractice, family law,
social security disability and criminal defense. 1 also maintained a general
office practice and assisted in representing several local government and
municipal clients. In 1 992, when the senior partner in the firm decided to
limit his practice, I began to devote more attention to the areas of estate
planning, probate law and litigation, and business formations - including
corporations, partnerships and limited liability companies - in order to
maintain this client base. I also took on most of the workers compensation
work, of the firm.

In 1992, I was appointed as County Attorney for Oconee County and
served in this capacity as a part of my private law practice until my
election to the bench. During this period of time, Oconee County
experienced economic development and industrial growth which increased
demand on local government services and infrastructure. In addition,
federal and state agencies focused attention on local government
compliance with regulations in the areas of solid waste management,
sewer and aeronautics. 1 represented the county sewer utility system, solid
waste department, airport commission, several municipalities and a local
water utility. Accordingly, 1 was required to become more familiar with
the areas of environmental, employment, governmental and utility law and

32

590

regulation, as well as public finance, including fee-in-lieu of tax
arrangements and bond issues.

From 1 992 until April 2000, 1 continued to maintain a general office
practice and engaged in civil and criminal litigation as described above but
devoted more time to government and municipal law. 1 have handled both
jury and non-jury trials primarily in state court involving personal injury,
property damage, medical malpractice, premises liability, contract
disputes, boundary line disputes, right-of-ways and easements, mortgage
foreclosures and matters in Probate Court involving actions for the
appointment of conservators and guardians and disputes concerning the
validity of testamentary documents and the administration of estates. I
also represented clients before administrative judges and boards in
workers compensation, social security disability and zoning matters.

With respect to civil litigation, 1 primarily represented plaintiffs but also
represented some individual and corporate defendants, as well as
government defendants. 1 have represented both the government and
landowners in eminent domain proceedings.

ii. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.

I maintained a general practice, primarily in state court. My clients
included individuals, balh working people and retirees, as well as small
businesses and several lending institutions. I also represented several
municipalities, two public utilities and Oconee County, and its various
commissions and boards.

As my practice developed over time, 1 had the opportunity to represent
people from all walks of life in a variety of legal matters. I did not
specialize in any particular area of law.

c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.

During the period of 1987 to 1990, while working as an Assistant Public Defender
and later as an Assistant Solicitor (Prosecutor), my court appearances were
frequent.

Beginning in 1 990, 1 began to appear more frequently in the Court of Common
Pleas (Circuit Court - Civil) in civil matters, as well as before administrative
agencies such as the South Carolina Workers’ Compensation Commission, but
continued to represent clients in Family Court, the Court of General Sessions,

33

591

Magistrate’s Court and Municipal Courts. I also represented clients before the
Social Security Administration and have appeared before zoning appeals boards.

After being appointed County Attorney, I necessarily devoted more of my time to
government, municipal and administrative matters. As a result of the increased
emphasis on government and administrative issues, my appearances in court
became less frequent.

i. Indicate the percentage of your practice in:

1 . federal courts: 5%

2. state courts of record: 60%

3. other courts: 10%

4. administrative agencies: 25%

ii. Indicate the percentage of your practice in:

1 . civil proceedings: 60%

2. criminal proceedings: 40%

d. State the number of cases in courts of record, including cases before
administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.

As a prosecutor, I handled most of my cases as sole counsel or primary counsel,
but also worked on some cases as co-counsel. As an associate, 1 participated in
most trials in Circuit Court as associate counsel, but appeared in Family Court
most often as sole counsel. Upon becoming a partner and forming my own firm, I
handled most cases as sole counsel or primary counsel. I would estimate that I
have participated in approximately fifty trials.

i. What percentage of these trials were:

1. jury: 40%

2. non-jury: 60%

e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any
oral argument transcripts before the Supreme Court in connection with your
practice.

I have not practiced before the Supreme Court of the United States.

1 7. Litigation : Describe the ten (1 0) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and dale if unreporled. Give a capsule summary of
the substance of each case. Identify the party or parties whom you represented; describe

34

592

in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case:

a. the date of representation;

b. the name of the court and the name of the judge or judges before whom the case
was litigated; and

c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.

(1) Stale v. Altizer , No. 87-GS-37-551, Judgment Roll No. 12,423 (Court of General
Sessions, Tenth Judicial Circuit, Oconee County); 1 987, The Honorable William H.
Ballenger (deceased).

1 was associate counsel for the Defendant who bad been charged with murder.
Representation included interviewing lay and expert witnesses, inspection of the scene
where the incident took place, legal research and preparation of proposed jury
instructions foT the trial judge and representation at trial. The Defendant asserted the
defense of self-defense. After a four day jury trial, the Defendant was found not guilty.

Alexander S. Macaulay, co-counsel

(Subsequently elected Judge, Circuit Court, Tenth Judicial Circuit)

P.O. Drawer 428
Walhalla, SC 29691
(864) 638-4266

George M. Ducworth, opposing counsel

c/o Anderson University

P.O. Box 1061

Anderson, SC 29621

(864) 231-5738

(former Solicitor, Tenth Judicial Circuit)

Tommy B. Edwards, opposing counsel

(subsequently elected Judge, Family Court, Tenth Judicial Circuit)

P.O. Box 8002
Anderson, SC 29622
(864) 260-4040

(2) Bowen v. Bowen , No. 88-DR-37-76 (Family Court, Tenth Judicial Circuit, Oconee
County); 1 988; The Honorable J. Franklin McClain, retired.

I represented the husband at the temporary and final hearings in this divorce action
initiated by the wife after nineteen years of marriage. The wife sought a divorce on the
ground of physical cruelty. My client counterclaimed on the ground of adultery. The

35

593

issues before the Court included the grounds for divorce, property division, division of
debts, child custody and support and alimony. The assets deemed marital property
included the marital home, securities and retirement funds. Testimony included that of a
private investigator hired by the husband. While child custody was settled at trial, all
other issues were litigated. At the conclusion of tire trial, the Court denied the Wife’s
prayer for a divorce on the ground of physical cruelty and awarded the husband a
divorce on the ground of adultery. My client received a favorable division of marital
assets.

Michael J. Smith, opposing counsel
P.O. Box 1247
Seneca, SC 29679
(864) 882-4600

(3) Oconee County Dep 7 of Social Services v. D. R, (Father) and M.L.R (Mother), No.
89-DR-37-317 (The Family Court, Tenth Judicial Circuit, Oconee County); The
Honorable Robert H. Cureton, retired.

As Assistant Solicitor, I represented the Oconee County Department of Social Services
(DSS) in this abuse and neglect action brought after two children were taken into
protective custody by law enforcement officers. The report which resulted in the
investigation included allegations that the children, ages 1 3 and 1 7, had been subjected
to verbal abuse, intimidation and threats by their father, who had threatened to kill
himself, the family and law enforcement officials. There was no evidence of physical
abuse, and the mother would not corroborate the information given by the children. It
was determined to prosecute the case on the basis of mental injury' and threat of harm to
the children. This was a contested case, and both parents were represented by separate
legal counsel. I represented DSS throughout the proceedings, including the temporary
hearing and merits hearing. The trial took place over a period of several days and
involved testimony from both lay and expert witnesses, as to the effect of the actions of
the parents on the mental state of the children. The Family Court made a finding of
mental injury and continued threat of harm to the children and awarded custody to DSS.
To my knowledge, this was the first abuse and neglect case in Oconee County which
went to trial on die basis of an alleged mental injury without allegations or evidence of
actual physical abuse.

Robert K. Whitney, opposing counsel
P.O. Box 14
Seneca, SC 29679
(864) 882-1414

Michael L. Haddock, opposing counsel

(Unable to obtain contact information for Mr. Haddock.)

36

594

R. Daniel Day, attorney for the minor children
Tenth Judicial Circuit Public Defender Office
415 South Pine Street
Walballa, SC 29691
(864)638-3132

(4) Slate v, Adams, Nos. 89-GS-04-2220 and 89-GS-04-1 104 (Court of General
Sessions, Anderson County); 1989; The Honorable William B. Traxler, Jr. Judge
Traxier is now the Chief Judge of the United Slates Court of Appeals for the Fourth
Circuit.

I prosecuted this case for the State of South Carolina. The Defendant was indicted on
two charges. Causing Great Bodily Injury By Operating A Vehicle While Under The
Influence Of Drugs Or Alcohol (Felony DUI - Great Bodily Injury), and Causing Death
by Operating A Vehicle While Under The Influence Of Drugs Or Alcohol (Felony DUI
- Death). The indictments alleged that the Defendant was driving a Ford Station Wagon
while under the influence of alcohol in Anderson County, South Carolina, when he lost
control of and wrecked his vehicle, causing the death of one person and serious bodily
injury to another. The Defendant asserted that he was not driving the vehicle at the time
of the collision. The case was tried before a jury over a period of two days. The State
was required to establish a chain of custody of bodily fluid samples taken by medical
personnel and present testimony from the investigating police officer, medical personnel
and other witnesses. The Defendant was convicted on both charges and sentenced to a
lemt of imprisonment of five years on one indictment, and ten years on the other. These
convictions were affirmed on appeal to the Supreme Court of South Carolina as
reflected in Memorandum Opinion 91 -MO-55 filed February 1 1, 1991.

Robert A. Gamble, opposing counsel
Anderson County Public Defender’s Office
301 Camson Road
Anderson, SC 29625
(864) 260-4048

(5) Stale v. Murphy, No. 89-DR-37-161 (Court of General Sessions, Tenth Judicial
Circuit, Oconee County); 1989; the Honorable William H. Ballenger, Circuit Court
Judge (deceased).

I prosecuted this case for the State of South Carolina on August 1 and 2, 1989. The
Defendant was indicted on the charge of Assault And Battery With Intent To Kill. The
State alleged that on December 24, 1988, tire Defendant, with malice aforethought,
committed the offense of assault and battejy with intent to kill upon the victim by
shooting him. The Defendant asserted the defense of self defense. The case was tried
before a jury over a period of two days and resulted in a verdict of guilty. The
Defendant was sentenced to a term of imprisonment of twenty years, suspended upon
the service of nine years in addition to five years probation and restitution.

37

595

W. Jeffry Weston, opposing counsel
Thirteenth Circuit Solicitor’s Office
305 East North Street, Suite 400
Greenville.SC 29601
(864) 467-8647

(6) Slate v. Connolly , No. 89-GS-37-1 (Court of General Sessions, Tenth Judicial
Circuit, Oconee County); 1 989; The Honorable E.C. Burnette, Circuit Court Judge,
retired. Prior to his retirement, Judge Burnette was elected as an Associate Justice of the
South Carolina Supreme Court.

I represented the State of South Carolina in this criminal prosecution for the offense of
Pointing Or Presenting A Firearm. The Defendant had significant criminal history
which included violent crimes such as kidnapping and drug offenses and was on
probation at the time of the offense. The Tenth Circuit Solicitor concluded that the
Defendant, who had been released on bond, represented a tltreat to public safety and the
community. The case was assigned to me for prosecution, and the Defendant was
convicted after a jury trial.

George M. Ducwortli, co-counsel
c/o Anderson University
P.O.Box 1061
Anderson, SC 29621
(864)231-5738

(former Solicitor, Tenth Judicial Circuit)

Bruce Byrholdt, opposing counsel
P.O. Box 2506
Anderson, SC 29622
(864) 225-1411

(7) Conyers v. Oconee Omni Corporation Corp., el at . , No. 90-CP-37-4 1 3, Judgment
Roll No. 30,409 (Court of Common Pleas, Tenth Judicial Circuit, Oconee County);
1990-1993; The Honorable Tom J. Ervin, Circuit Court Judge (retired).

My firm represented the Plaintiff in this medical malpractice action. The Plaintiff was
involved in an automobile accident and was treated by the Defendant Physician at
Oconee Memorial Hospital. The allegations included that the attending physician had
improperly and prematurely removed a cervical collar and immobilization restraints
placed on the Plaintiff at the scene by emergency medical personnel, and that this
incident was indicative of a pattern of similar conduct towards patients treated in the
emergency room by this physician. The Plaintiff was rendered a quadriplegic as a result
of his injuries. Tliis lawsuit involved extensive discovery and depositions over a period
of approximately two and one-half years, as well as the preparation and use of expert
witnesses, including emergency physicians, neurosurgeons, economists, and life care
planners. The Corporate Defendants and Officers were granted summary judgment.

38

596

The trial, which lasted two weeks, resulted in a verdict for the Plaintiff against the
Defendant Physician in the amount of five million dollars. It is my understanding that at
tlie time, this verdict represented the largest jury award ever rendered in Oconee County.
The Defendant filed an appeal. However, a favorable settlement was reached while the
case was on appeal.

Larry C. Brandt, co-counsel
P.O. Box 738
Walhalla, SC 29691
(864) 638-5406

W. Jerry Fedder, co-counsel
10 Running Deer Court
Greer, SC 29650
(864) 848-1201

Lindsey O. Graham, co-counsel

(Mr. Graham was subsequently elected to Congress)

290 Russell Senate Office Building
Washington, D.C. 20510
(202) 224-5972

Alexander S. Macaulay, opposing counsel

(subsequently elected as Circuit Court Judge, Tenth Judicial Circuit)

P.O. Drawer 428
Walhalla, SC 29691
(864) 638-4266

William M. Hagood, III, opposing counsel
P.O. Box 10045
Greenville, SC 29603
(864) 242-6360

Cary C. Doyle, opposing counsel
P.O. Box 2125
Anderson, SC 29622
(864) 224-71 1 1

G. Dewey Oxner, Jr., opposing counsel
P.O. Box 2048
Greenville, SC 29602
(864) 240-3208

39

597

(8) S tandridge. v. Thrift, ei a!., No. 1 992-ES-37-00-120 (Probate Court, of Oconee
County), 1994; The Honorable Sandra Burgess Orr, Probate Judge.

I represented the Estate of Mae Thrift Standridge. The decedent had insufficient
funds to pay substantial medical expenses and debts incurred prior to her death. The
Personal Representative engaged me to bring an action for the sale of certain property
to satisfy these debts. In addition to assuring compliance with the necessary notice
and accounting requirements for administration of the estate, I assisted the Personal
Representative in securing professional services to obtain a plat of survey of the
subject property, real estate appraisals and for the preparation and filing of fiduciary
tax returns. It was necessary to examine the title to the tracts of real estate owned by
the decedent at the time of her death and to determine the decedent’s heirs at law and
the interests of such persons in the estate.

During the course of the litigation, one of the heirs filed a Disclaimer in an attempt to
renounce his interest in the estate in favor of his minor children. Examination of the
public records of Oconee County suggested that this purported Disclaimer was filed
to avoid the attachment of a judgment lien to the interest of this heir. A review of the
applicable provisions of state law and the Internal Revenue Code raised concerns as
to the timing of the filing of the purported Disclaimer. In order to protect the Estate, I
sought ajudicial determination of the effect and validity of the purported Disclaimer.
Because the Disclaimer would have benefited the subject heir’s minor children, I
petitioned the court for the appointment of a Guardian ad Litem for these children.

After hearing the matter, the Probate Court determined that the Disclaimer was
invalid and ineffective as it was not filed in compliance with state and federal law.

The court also entered an order approving the sale of timber as requested by the
Personal Representative and application of the proceeds to payment of debts of the
Estate. As a part of this process, I also prepared a Memorandum of Agreement For
Harvesting And Sale Of Timber which was approved by the court.

John J. McDonough, III, opposing counsel

According to information obtained from the South Carolina Bar Association, Mr.
McDonough is no longer licensed to practice law in South Carolina pursuant to Order
of the Supreme Court of South Carolina dated August 12, 1996.

Timothy C. Merrell, Guardian ad Litem
1 1 9-B Professional Park Drive
Seneca, SC 29678
(864) 882-2466

40

598

(9) Oconee County v. Richardson, et ah. No, 96-CP-37-324; Judgment Roll No. 34,053
(Court of Common Pleas, Tenth Judicial Circuit, Oconee County); ! 996-1 998; The
Honorable Alexander S. Macaulay, Circuit Court Judge.

I represented Oconee County, South Carolina, in this condemnation action filed pursuant
to the South Carolina Eminent Domain Procedure Act. Oconee County, as a political
subdivision of the State of South Carolina, was vested by law with the power of eminent
domain. The County sought the acquisition of a tract of real estate and easement
appurtenant thereto for the expansion of the Clemson-Oconee Airport. The County had
obtained a federal grant for the project through the Federal Aviation Administration.
Acquisition of the property was required for the project to proceed. As counsel for
Oconee County, I was required to examine the title to the subject property to determine
the ownership interests therein and include as named parlies all persons having a
possible claim or interest.

Discovery was required which included filing the appropriate pre-trial motions to
compel discovery and for a judicial determination as to the interests of the parties in the
subject real property. The Condemnees filed a motion for a non-jury trial which was
granted by consent. The matter was tried before the court on August 26, 1 998 which
resulted in an award of just compensation in ihe amount offered by the County. Two of
the Condemnees filed an appeal to the Supreme Court of South Carolina which was
dismissed by Order dated October 13, 1998.

James S. Erwin, III, opposing counsel
806 Powdersville Road, Suite E
Easley, SC 29642
(864) 855-4595

(10) Turner, et al. v. Oconee County, et al. No. 1998-CP-37-77; Judgment Roll No.
36,150 (Court of Common Pleas, Tenth Judicial Circuit, Oconee County); 1998-2000;
The Honorable Ellis B. Drew, Jr., Master-in-Equity.

I represented the County of Oconee in this action. The Plaintiff sought to have the Court
make ajudicial determination to require Oconee County to accept and maintain a road
located within the Bayshore Estates Subdivision leading to Lake Hartwell. Defendants
Sylvester filed counterclaims against the Plaintiff. The issue before the Court affecting
my client was whether the subject road was dedicated as a public road or accepted as
such by Oconee County. An unfavorable ruling to my client could have affected other
situations and exposed the County to additional liability and expense. I moved for and
obtained an Order for Summary Judgment as to Defendant, Oconee County. The Order
granting Summary Judgment in favor of my client was affirmed by the South Carolina
Court of Appeals after 1 closed my law practice upon election to the Family Court
Bench.

41

599

R. Scott Sprouse, opposing counsel
P.O. Box 99
Seneca, SC 29679
(864) 882-1480

Phillip E. Reeves, opposing counsel
P.O. Box 15089
Greenville, SC 29603
(864)271-9580

Perry H. Gravely, counsel for Defendants Prescott and Sylvester
P.O. Box 219
Pickens, SC 29671
(864) 878-1577

Bradley A. Norton, counsel for Bayshore Association, Inc.

P.O. Box 490
Walhalla, SC 29691
(864) 683-2930

1 8. Legal Activities : Describe the most significant legal activities you have pursued,

including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organization(s) for whom you performed lobbying activities and describe
the lobbying activities you performed on behalf of such client(s) or organizations(s).
(Note: As to any facts requested in this question, please omit any information protected
by the attorney-client privilege.)

As a prosecutor and criminal defense attorney, I have prosecuted and defended many
actions involving crimes against persons and properly which did not go to trial, (
represented clients in three medical malpractice cases filed in state court which resulted
in settlements prior to trial. One of these cases involved wrongful death and survival
actions. T also handled a medical malpractice action against United States Army under
the Federal Tort Claim Act which resulted in a substantial settlement.

1 was a principal attorney involved in a premises liability case which left a young child
with permanent brain damage filed in state court but removed to federal court. A
favorable confidential settlement was reach shortly before trial. My practice in civil court
included several cases involving serious persona! injury which sometimes included
companion claims for workers compensation and social security disability benefits.

My work in family court included the representation of clients of modest means and
clients with substantial marital estates. 1 have handled numerous actions involving the
termination of parental rights as well as adoptions.

42

600

As counsel for the Oconee County Sewer Commission, holder of a National Pollution
Discharge Elimination System Permit, 1 represented the agency in enforcement actions
against industrial sewer users for violations of local sewer permit discharge limits. T also
represented the agency in enforcement actions brought by the South Carolina Department
of Health and Environmental Control (SCDHEC) as enforcement entity for the U.S.
Environmental Protection Agency and assisted in updating, developing and implementing
a more current sewer use ordinance for Oconee County. In addition, 1 assisted the Sewer
Commission in the preparation of filings and submissions with state and federal agencies,
including SCDHEC, and the Federal Energy Regulatory Commission involving a variety
of matters.

As County Attorney, I worked with the County Planning Commission in the development
and adoption of the first Land Use Plan Ordinance in Oconee County, and a Municipal
Solid Waste Management Plan as required by state and federal law. As counsel to local
government entities in such matters, I was required to draft and review ordinances,
consent orders, intergovernmental agreements and provide representation at numerous
public hearings and enforcement conferences. 1 represented the county in the negotiation
and preparation of engineering and construction contracts for a multi-million dollar
upgrade to the sewer treatment facility and with legal issues pertaining to obtaining
financing for the project.

As counsel to the Oconee County Aeronautics Commission, I represented Oconee County
in litigation involving the public airport, as well as compliance with regulations and grant
requirements issued by the Federal Aviation Administration and S.C. Aeronautics
Commission. 1 also assisted in the development of a land use compatibility ordinance to
protect the operation of the public airport.

I also represented the County Election Commission in matters pertaining to public
elections and submission of ballot questions to the United States Department of Justice
for pre-clearance as required by federal law, and have represented four municipalities in
various issues involving litigation, contractual, employment and other matters.

1 9. Teaching : What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.

I have not taught any courses.

20. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest.

43

601

As I have been a full time state court judge for over 10 years, I am divested from any law
firms with which I was Formerly associated. I have no deferred income arrangements
other than my retirement accounts,

21. Outside Commitments During Court Service : Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.

I do not have any plans or commitments to pursue outside employment.

22. Sources of Income : List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding $500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1978, may be substituted here).

See attached Financial Disclosure Statement.

23. Statement of Net Worth : Please complete the attached financial net worth statement in
detail (add schedules as called for).

See attached Net Worth Statement.

24. Potential Conflicts of Interest :

a. Identify the family members or other persons, patties, categories of litigation, and
financial arrangements that are likely to present potential conflicts-of-interest
when you first assume the position to which you have been nominated. Explain
how you would address any such conflict if it were to arise.

I am not aware of any potential conflicts of interest.

b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.

I would refer the Code of Judicial Conduct and Canons of Judicial Ethics to
address any potential conflicts of interest. 1 would recuse myself sua sponte in
any matter which presented an appearance of impropriety or where my
impartiality might reasonably be questioned.

25. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar
Association’s Code of Professional Responsibility calls for “every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving (he disadvantaged.” Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.

44

602

During my time as a practicing attorney, 1 assisted many disadvantaged clients, including
those unable to speak English, on a pro bono basis and at reduced fees. I have also
served as Guardian ad Litem for children in abuse and neglect actions without fee.
Additionally, I have served as advisor and coach to a local high school mock trial team.

During the first Gulf War. 1 assisted in preparing Last Wills and Testaments for service
members called up for active duty. While in private practice, at the request of the South
Carolina Department of Social Services, 1 agreed to be appointed as Conservator, under
supervision of the Probate Court, for a vulnerable adult who was unable to provide for
her own care and had no family in a position to assist her.

1 have also served in various capacities with several community' groups including
committees and boards of organizations such as United Way and a regional not for profit
blood program providing needed blood supplies to hospitals in South Carolina and
Georgia. I also served on the Board of Directors of the Oconee Defender Corporation
which, prior to the implementation of the statewide Indigent Defense System, was
responsible for providing services to indigent defendants in criminal cases in Oconee
County. I have also been actively involved in community outreach programs through my
church designed to assist disadvantaged persons and have volunteered countless hours as
a coach for the local recreation department.

26. Selection Process :

a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
the interviews in which you participated). Is there a selection commission in your
jurisdiction to recommend candidates for nomination to the federal courts? If so,
please include that process in your description, as well as whether the commission
recommended your nomination. List the dates of all interviews or
communications you had with the While House staff or the Justice Department
regarding this nomination. Do not include any contacts with Federal Bureau of
Investigation personnel concerning your nomination.

There is no selection commission in my jurisdiction to recommend candidates for
nomination to the federal courts.

I have had several conversations with Senator Lindsey O. Graham concerning
potential judicial openings in the United States District Court for the District of
South Carolina. In May 2009, Senator Graham suggested that I contact the
Offices of Congressman John M. Spratt, Jr. and Congressman James E. Clybum.

I subsequently spoke with and provided information to representatives of both
Congressmen. [ met with Congressman Spratt in May 2009. In June 2009, 1
received a joint letter from Congressman Spratt and Congressman Clybum which
indicated that my name had been submitted to the White House Counsel for
consideration for appointment as a United States District Judge. I thereafter wrote
both Congressmen and thanked them for their consideration and assistance.

45

603

I was contacted by a member of Senator Graham’s staff on October 1 8, 20 1 0.
Since October 19, 2010, 1 have been in contact with pre-nomination officials at
the LLS. Department of Justice. I interviewed with attorneys from the White
House Counsel’s Office and the Department of Justice in Washington, D.C., on
December 2, 201 0, The President submitted my nomination to the Senate on
February 16, 201 1.

b. Has anyone involved in the process of selecting you as a judicial nominee

discussed with you any currently pending or specific case, legal issue or question
in a mamter that could reasonably be interpreted as seeking any express or
implied assurances concerning your position on such case, issue, or question? If
so, explain fully.

No

46

604

IWW FINANCIAL DISCLOSURE REPORT

.:::iteWW&M nomination filing (sus.c. V p.mai.i m

H. AGREEMENTS. (/reporting inJIvlduel only,' tee pp. 14-16 of filing Oatrocilons.)
| ) NONE (No reportable agreements.)

PATE

SC judicial and Solicitors Retirement System, pension Upon age 55

605

Name ef Ftrxoa Repanlng

Date af Rtpart

CAIN, TIMOTHY M.

02 / 16 / 20 } l

HL NON-INVESTMENT INCOME. tn JMdtnt and ipomt; irepp. 17-J1 offiBtrg InnructfoniJ

A. Filer's Non-In vestment Income
j ) NONE (No reportable non-investment income.)

t. 2009 S.C. Judicial Department, salary and tumble reimbursements

2. 2010 S.C. judicial Department, salary and lx* able reimbursements

2. 301 ) S C. Judicial Department, salary and taxable reimbursements

INCOME

(yours, not spouse’s)

B. SpOUJe's Non-Invetctraent loconte - Uf° u marrird daring any pcrlJgri af the reporting year, complete till ttcrta/K

(Dollar ofnatmt not required cictp! far honorarlaj

H NONE (No reportable non-investment income.)

School District of Oconee County, salary
School District of Oconee Counly. salary

IV. REIMBURSEMENTS - rroncportathn, lodging, /rod, •nUrttlnmcnL

flncMai Or me to tpoujw and dependent children: tee pp JS-I7 o/jUtng Inflruclioni.)

| | NONE (No reportable reimbursements.)

SOURCE DATES .LOCATION

I, EXEMPT

606

FINANCIAL DISCLOSURE REPORT

| Nome of Ptma flcportf n(

Dttt of Report

Page 3 of 6

CAIN, TIMOTHY M.

02/16/2011

V, GIFTS. (TncJittUi those to cpoust and depiniinl children; see pp, 2S-JI ef/U/Hg inlirualmy)
| j NONE (No reportable gifts.)

VI LIABILITIES. (IneluJa those of epouit and dependent children; see pfi. ij- J) of filing liairtu/lomsj
| / j NONE (No reportable liabilities.)

I

h.

L

4.

CREDITOR

607

FINANCIAL DISCLOSURE REPORT

Page 4 of 6

I N»m* of Perron Reporting

Du* ofRtpari

Cain, timothy m.

02/1 W0 1!

VH. INVESTMENTS and TRUSTS — Incomr, value, muottitni (fad ties /host «/ jpoast and dependent children; set o/JUfaf buintiie nh}

| [ NONE (No reportable income, assets, or transactions.)

I * K. ~T &. ! C. [ ' T>.

Dtvcripu'iia of Assets
(including (ml osseu>

[neeme during
ttponiog period

Qrosi v* hie *! end
of rtpomng period

7 renutbfl M during ttportif\£ period

XX)" after aach axicr
eicrnpi ftoiuijnordiaclofLm:

0 )

Amount

Code)

(A-HJ

( 2 )

TV?* (tfr.

OfiDl.)

w

Vatu*

Code?

(I-P)

( 2 )

Value

Method

Code 3
(Q-IY)

( 1 )

T«J« («.«..
buy. sell.

redemption)

P)

DMA

rwfdilyy

(J)

Value

Code?

()•?)

np>

Gaia

Code t
(A-H)

P)

Identity of
buycr/sdla
(if private
Oanjacrion)

1. Community First Bank Account

8

L

None

1

T

2. Oconee Federal Savings and Loan
Association Account

■

sa

i

T

3. SC Slate Credit Union Accounts

■

E 3

H

T

■ I

4. ASKuiiM*.«cr-Dtx 5 Aunnity

None

■

T

■1

■

■ | ■

5. American Fund* Euro Pacific Growth Fund

A

H

■

T

■

6. Dodge Sc Cox Slock Fund

■

m

■

T

7. Hertford Money Marker HLS Annunity

None

1

T

8. Mu ndcr Mid Cap Core Growth Y

m

1

■

9. South Carolina Stable Value Fund

KM

J

■

10. T, Rowe Price Mid-Cap Value fund

|

i

■

■

U.

■

■

13.

■

14.

IS.

16.

n.

■

■

I. [recent Otic Coder.

(S« Chl«re«o E* »*>4 D«)
1 VUkir Crda*

I *$t . 000 ee tec
; ~1JO,OCI - i 1 00. MO

B -$),*#! . JJJOO
0 -SIPC.iXif - 51,350.000

E-tlS.MH -5M.0OO

608

FINANCIAL DISCLOSURE REPORT
Page 5 of 6

N»mo a! Ptfitto Rtportlof

CAIN, TIMOTHY M.

| Datcef Rtpon

j 02/i«non

VIII. ADDITIONAL INFORMATION OR EXPLANATIONS.

FINANCIAL DISCLOSURE REPORT

N*m« of Ptrion Reporting 1

Dan Of Report

Page 6 of 6

CAIN, TIMOTHY M. ]

02/1 d/30 Vi

IX. CERTIFICATION.

I certify that all Jnfarma Hon given above (Including inform* Hon pertaining to my jpouw and minor or dependent children, if soy} b
aaurafr, trot, and complete to lb* best of iny knowledge and bell*/, and that any information sot reported «raj trtthhtJd because it met applicable rtatwtory
provbioni permitting non-dliclcnuri.

1 further certify (bat earned income from outside employment and honoraria and the acceptance «f gifts which have been reported are In
compliance with the provision* of 5 U-SC. app. § 501 ct. *cq. t S U-S.C. 1 735J, and Judicial Conference reguUfton*.

Signature

NOTE: ANY INDrvrDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE SUBJECT TO CIVIL
AND CRIMINAL SANCTIONS (S ILS.C. app. § |04)

FILING INSTRUCTIONS

Mail signed original and 3 additional copies lo:

Committee oq Financial Disclosure
Administrative Office of the United Stales Courts
Suite 2-301

One Columbus Circle, N.E.

Washington, D.C. 20544

609

FIN ANCIAL STATEMENT

NET WORTH

Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank
accounts, real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts,
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate members of your
household,

| ASSETS

LIABILITIES

Cash on hand and in banks

53

205

Notes payable to banks-securcd

U.S. Government sccurities-Sertcs EE bonds

2

800

Notes payable to banks-unsecurcd

Listed securities

Notes payable to relatives

Unlisted securities

Notes payable to others

Accounts and notes receivable:

Accounts and bills duo

Due from relatives and friends

Unpaid income lax

Due from others

Other unpaid income and interest

Doubtful

Real estate mortgages payable - personal
residence

132

182

Real estate owned - see schedule

354

300

Chattel mortgages and other liens payable

Real estate mortgages receivable

Other dcbts-iteinizc:

Autos and other personal properly

80

000

Cash value-life insurance

Other assets itemize:

- Retirement holdings - see schedule

353

096

I'otnl liabilities

132

182

Net Worth

711

901

Total Assets

844

083

Total liabilities and net worth

083

CONTINGENT LI ABILITIES

r

GENERAL INFORMATION

B

As endorser, comaker or guarantor

Arc any assets pledged? (Add schedule)

■

On leases or contracts

~1

Arc you defendant in any suits or legal
actions?

NO

Legal Claims

Have you ever taken bankruptcy?

NO

Provision for Federal Income Tax

Other special debt

610

FINANCIAL STATEMENT
NET WORTH SCHEDULES

Real Estate Owned

Personal residence

$ 349,300

Undeveloped lot

5,000

Total Real Estate Owned

S 354,300

Retirement Holdings

Allianz MasterDex 5 Annuity

$ 73,967

American Funds Euro Pacific Growth Fund -A

8,474

Dodge & Cox Stock Fund

11,986

Hartford Money Market HLS Annuity

828

Munder Mid Cap Core Growth Y

4,593

South Carolina Stable Value Fund

3,897

South Carolina Retirement System

34,727

SC Judicial and Solicitors Retirement System

200,696

T, Rowe Price Mid-Cap Value Fund

13,928

Total Retirement Holdings $ 353,096

611

AFFIDAVIT

I, TIMOTHY M. CAIN, do swear that the information provided in
this statement is, to the best of my knowledge, true and
accurate .

F ziditv+fiy IS , - zo/ i

(DATE)

(NAME)

(NOTARY)

^ClCotG^nCt)

Cif&uCl S, SlOIS

612

Senator COONS. Thank you, Judge Cain.

Judge Ross.

STATEMENT OF HON. JOHN A. ROSS, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI

Judge Ross. Thank you, Senator Coons, and I want to thank
Senator Grassley and all of the members of the Committee for let-
ting us have this hearing here today. We truly appreciate it. It is
truly an honor and privilege to be here.

I want to thank the President for the nomination, and I espe-
cially want to thank Senator McCaskill for her kind words in intro-
ducing me and her support throughout this process.

I am pleased to be here today with family and friends, so I would
like to introduce my wife, Judy, who is behind me. We are cele-
brating our 20th anniversary later this year. And my son, Joe, who
will be 13 later this month; and my daughter, Emily, who will be
16 later this month. And I also had to get approval from their
teachers and principals to allow them to be here for this experi-
ence.

I also have my nephew, William Goodman, who came down from
New York for this; my niece, Lauren Goodman, who is an attorney
here in Washington, D.C.; and my very, very dear friends Dr.
David Robson, his wife, Deb, and their daughters Kelly and Anna,
who are here. And I would also just like to acknowledge my par-
ents, Bernie and Elizabeth Ross, who are 89 and 86 and could not
travel here, but are with my sister watching this on a webcam; and
my father-in-law, who is a retired St. Louis city policeman, Fred
Lucreth, who I think is also watching it on a webcam.

So thank you very much.

[The biographical information of Judge Ross follows:]

613

UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY

QUESTIONNAIRE FOR JUDICIAL NOMINEES

PUBLIC

1 • Name : State full name (include any former names used).

John Andrew Ross

2. Position : State the position for which you have been nominated.

United States District Judge for the Eastern District of Missouri

3. Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.

Office: State of Missouri, 21 st Judicial Circuit

St. Louis County Courthouse, Division 15
7900 Carondelet Avenue
Clayton, Missouri 63105

Residence: St. Louis County, Missouri

4. Birthplace : State year and place of birth.

1954; St. Louis, Missouri

5. Education : List in reverse chronological order each college, law school, or any other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.

1976 - 1979, Emory University School of Law; J.D., 1979

1972 — 1976, Emory University; B.A., 1976

6. Employment Record : List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation
from college, whether or not you received payment for your sendees. Include the name
and address of the employer and job title or description.

614

2000 — Presem

State of Missouri, 21st Judicial Circuit
Division 15

7900 Carondeiet Avenue
Clayton, Missouri 63105
Presiding Judge (2009 - present)

Assistant Presiding Judge (2005 - 2009)

Circuit Judge (2000 - present)

2007 - Present

Commercial Bank of Westport
2330 Westport Plaza Drive
Maryland Heights, Missouri 63146
Advisory Board Member

1991-2000
St. Louis County
41 South Centrd
Clayton, Missouri 63105
County Counselor

(On two occasions during this period - 1 996 through 1 998, and 1 998 through 1 999 - 1
worked as a consultant with other lawyers on two civil matters. In each instance, I
worked nights and weekends, and took a short leave of absence from my work as County
Counselor.)

1976-1998

Georgia Research Associates
6065 Roswell Road, Suite 2222
Atlanta, Georgia 30318
Sole Proprietor

1979-1991

St. Louis County Prosecuting Attorney’s Office
7900 Carondeiet Avenue
Clayton, Missouri 63105
Chief Trial Attorney (1988- 1991)

Assistant Chief Trial Attorney (1986 - 1988)

Assistant Prosecuting Attorney (1979- 1 986)

1989

St. Charles County Prosecuting Attorney’s Office

300 North 2nd Street

St. Charles, Missouri 63301

Special Assistant Prosecuting Attorney

2

615

1984

Missouri Attorney General’s Office
Supreme Court Building
Post Office Box 899
Jefferson City, Missouri 65102
Special Assistant Attorney General

Summer 1978
Law Office of Joe Becker
8011 Clayton Road
St. Louis, Missouri 63117
Legai Intern

Summer 1977
The Alan Company
3960 Lindell Boulevard
St. Louis, Missouri 63108
Administrative Assistant

Summer 1976
Emory Tennis Camp
1380 South Oxford Road
Atlanta, Georgia 30322
Tennis Instructor

Other Affiliations ('uncompensated')

2004 - Present

The Buzz Westfall Charitable Foundation
5840 Oakland Avenue
St. Louis, Missouri 63110
President of the Board

2004 - 2008

Asthma and Allergy Foundation, St. Louis Chapter
1500 South Big Bend Boulevard
St. Louis, Missouri 63117
Board Member

1996 - 2005

St. Louis County Domestic and Family Violence Council
7900 Carondelet
Clayton, Missouri 63105
Board Member

3

616

1999-2004

Metropolitan Employment and Training Center, Inc.

41 South Central
Clayton, Missouri 63 1 05
Chairman of the Board

1998-2000

St. Louis International Film Festival
55 Maryland Plaza, Suite A
St. Louis, Missouri 63108
Board Member

1993- 2000

Friends of the Weinman Shelter for Battered Women and Children
41 South Central
Clayton, Missouri 63105
Board Member and Treasurer

1992-2000

St. Louis County Public Facilities Corporation
41 South Central
Clayton, Missouri 63105
Secretary and Treasurer of the Board

1994- 1998

Football at the New Stadium, Inc. (FANS, Inc.)

41 South Central
Clayton, Missouri 63105
President of the Board

7. Military Service and Draft Status : Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.

1 have not served in the military. I registered for the Selective Service upon turning age
18.

8. Honors and Awards : List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.

Award of Commendation, Northwoods, Missouri Police Department (1983)

Certificate of Appreciation, St. Louis County Grand Jury (1984)

Award of Achievement, Bar Association of Metropolitan St. Louis (1991 & 1992)
Certificate of Appreciation, Arts and Education Council of Greater St. Louis (1992)

4

617

Certificate of Appreciation, Missouri Association of Counties (1996)

Certificate of Appreciation, St, Louis County Municipal League (1997)

9. Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.

International Municipal Lawyers Association
Missouri Bar Association

2009 Annual Meeting Planning Committee
Missouri Municipal Attorneys Association
National District Attorneys Association
St. Louis County Bar Association
St. Louis County Circuit Court:

Budget Committee
Building Committee
Community Relations Committee
Criminal Justice Review Committee
Security Committee

10. Bar and Court Admission :

a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.

Missouri, 1979

Georgia, 1 979 (presently on inactive status)

There has been no lapse in my membership in the Missouri Bar. On five
occasions, I made late payments of my bar dues in the State of Georgia where
I was admitted to practice after graduating, but where I never practiced Jaw.
Under the Georgia rules, my bar membership technically lapsed and was then
reinstated in these periods.

b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any
lapse in membership. Give the same information for administrative bodies
that require special admission to practice.

Missouri Supreme Court, 1979

Georgia Supreme Court, 1979 (presently on inactive status)

There has been no lapse in my membership in the Missouri Bar. On five
occasions, I made late payments of my bar dues in the State of Georgia where
I was admitted to practice after graduating, but where 1 never practiced law.

5

618

Under the Georgia rules, my bar membership technically lapsed and was then
reinstated in these periods.

1 1. Memberships :

a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 10 to
which you belong, or to which you have belonged, since graduation from law
school. Provide dates of membership or participation, and indicate any office
you held. Include clubs, working groups, advisory or editorial boards, panels,
committees, conferences, or publications.

Asthma and Allergy Foundation, Board Member (2004 - 2008)

The Buzz Westfall Charitable Foundation, President of the Board (2004 -
present)

Commercial Bank of Westport, Advisory Board (2007 - present)

FANS, Inc., President of Board (1994 - 1998)

Forest Lake Tennis Club (2006-2009)

Friends of the Wienman Shelter for Battered Women and Children, Board
Member and Treasurer (1993 -2000)

Frontenac Racquet Club (1990 - present)

Leadership St. Louis (now known as Focus St. Louis) (1994)

Metropolitan Employment and Training Center, Inc., Chairman of the Board
(1999 - 2004)

Parkway Swim Club (2007 - present)

Phi Alpha Delta legal fraternity (1979-1 985)

St. Louis County Domestic and Family Violence Council, Board Member
(1996-2005)

St. Louis County Library

Member, "Buzz” Westfall Favorite Author Series Organizing Committee
(2004 - 2006)

St. Louis County Public Facilities Corporation (1992-2000)

St. Louis International Film Festival, Board Member ( 1 998 - 2000)

St. Louis Site Remediation Task Force (1994 - 1996)

b. The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any
organization that invidiously discriminates on the basis of race, sex, or
religion, or national origin. Indicate whether any of these organizations listed
in response to 1 la above currently discriminate or formerly discriminated on
the basis of race, sex, religion or national origin either through formal
membership requirements or the practical implementation of membership
policies. If so, describe any action you have taken to change these policies
and practices.

6

619

None of the organizations listed in response to 1 1 a above currently
discriminates, or to the best of my knowledge, formerly discriminated, on the
basis of race, sex, religion or national origin either through formal
membership requirements or the practical implementation of membership
policies.

12. Published Writings and Public Statements ;

a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Supply four (4) copies of all published
material to the Committee.

None.

b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, give the
name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.

While a member of the St. Louis Site Remediation Task Force, the task force
created “Recommendations for Cleanup Priorities for Fiscal Years 1996 and
1997.” I did not actively participate in the Task Force, but a copy of the
Recommendations is supplied.

c. Supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.

As County Counselor for St. Louis County from 1991 to 2000, 1 attended weekly
County Council meetings and frequently provided legal interpretations and
opinions. Those Council meetings were not recorded and there are no tapes,
transcripts or records. The County Counselor’s Office issues legal opinions at the
request of County agencies and departments. A list of the legal opinions I issued
as County Counselor is supplied as Attachment 1 2c along with the opinions.

d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by you, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk. If you do not have a copy of the speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.

7

620

If you did not speak from 0 prepared text, furnish a copy of any outline 01 notes
from which you spoke.

I have searched my files and electronic databases, and I am including all materials
' that I have found. When I speak publically, I typically do not have a text and
normally do not have notes. The list below represents my best efforts to provide
an answer that is as complete as possible.

March 2010: Panel member on Continuity of Operation Planning at the Presiding
Judges Meeting. I have no notes, transcript, or recording. The address of the
organization is Judicial Education Center, 121 Alameda Drive, Jefferson City,
Missouri 65110.

October 2009: Judges’ Roundtable Program, Bar Association of Metropolitan St.
Louis. I have no notes, transcript, or recording. The address of the Association is
720 Olive Street, Suite 2900, St. Louis, Missouri 63101.

May 2009: Panel member on Handling of Employment Cases sponsored by the
National Employment Lawyers’ Association, St. Louis Chapter. 1 have no notes,
transcript, or recording. The address of the Association is 1 090 Vermont Avenue,
NW Suite 500, Washington, DC 20005.

January 2008: Speaker at the Swearing-In Ceremony for Law Enforcement
Officials of Greater St. Louis. I have no notes, transcript, or recording. 1 was
unable to find an address for this organization.

June 2006: Panel member for program “Views from the Trial Bench,” sponsored
by Missouri Organization of Defense Lawyers. 1 have no notes, transcript, or
recording. The address for the Organization is 101 East High Street, P.O, Box
1072, Jefferson City, Missouri 65102.

June 2005; Panel member for Criminal Law Program at the Bench and Bar
Conference sponsored by the Bar Association of Metropolitan St. Louis. I have
no notes, transcript, or recording. The address of the Association is 720 Olive
Street, Suite 2900, St. Louis, Missouri 63101.

October 2004: Speaker at the dedication of the Buzz Westfall Sculpture in the
Memorial Park of the St. Louis County Government Center. 1 have no notes,
transcript, or recording.

September 2004: Speaker at the dedication ceremony for the Buzz Westfall
Memorial Highway. Notes supplied.

March 19, 2004: Speaker at fundraiser entitled, “Buzz’s Birthday Bash,” for Buzz
Westfall memorial and scholarship to SLU High. I have no notes, transcript or
recording.

8

621

April 30, 1994: Panelist on crime problems at annual convention of Churches
United for Community Action. 1 have no notes, transcript or recording, but press
coverage is supplied.

August 3, 1988: Panelist during International Leadership Seminar for high school
students, sponsored by the Hugh O’Brian Youth Foundation. 1 have no notes,
transcript or recording, but press coverage is supplied. The address of the
Foundation, known as Hugh O’Brian Youth Leadership, is 31255 Cedar Valley
Drive, Suite 327, Westlake Village, California 91362.

In addition, the members of our court sometimes hold public en banc meetings on
administrative issues such as budget and facilities. As part of my judicial
responsibilities, 1 have taken part in these meetings.

As Assistant Presiding Judge and Presiding Judge from 2005 to the present, 1 have
spoken to community groups and students about the judicial system and the role
of the courts. There are no records or notes of those meetings.

Finally, as Chief Trial Attorney in the Prosecuting Attorney’s Office from 1988 to
1991, 1 represented the Office at meetings of police groups and community
groups, such as Mothers Against Drunk Drivers, and spoke about law
enforcement efforts. I have no notes, transcripts or recordings. The address of
Mothers Against Drunk Drivers is 2050 Woodson Road, St. Louis, Missouri
63114.

e. List at! interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.

While there are many news accounts attributing certain statements to me, some of
these are the result of statements 1 have made in either a courtroom proceeding or
public meeting. I have searched my files as well as internet databases to locate as
complete a list of interviews as I could, and am providing all that are available to
me, but it is possible there are some I was not able to locate.

Anna Vitale, “Ross Re-Elected Presiding Judge,” Missouri Lawyers Media, Oct.
14,2010. Copy supplied.

Heather Ratcliffe, “Public Defenders Act to Cut Off Cases; St. Louis County
Prosecutor, Chief Judge Get Warning that Overload Has Become Crisis,” St.

Louis Post-Dispatch, July 29, 2010. Copy supplied.

Angela Riley, “St. Louis County Adds to Judges’ Toolbox,” Missouri Lawyers
Media, May 27, 2010. Copy supplied.

9

622

Angela Riley, “Missouri Courts Facing Hiring Freeze,” Missouri Lawyers Media ,
Mar. 10, 2010. Copy supplied.

Heather RatclifFe, “Bond Office Could Fall to Court’s Budget Ax,” St. Louis
Post-Dispatch, Mat. 5,2010. Copy supplied.

Heather Cole, “Dress Codes: Missouri Courts Face Difficulty Fashioning
Guidelines for What Not to Wear,” Missouri Lawyers Media, June 1 9, 2009.

Copy supplied.

Angela Riley, “Electrical Fire Shuts Down St. Louis County Courts,” Missouri
Lawyers Media, June 8, 2009. Copy supplied.

Mike Owens, “St. Louis County Courts Closed for the Rest of the Week,”
KSDK.com, June 8, 2009. Copy supplied.

Donna Walter, “St. Louis County Circuit Court's Probate Division Will Come
Under Circuit Clerk,” Missouri Lawyers Media, Apr. 27, 2009. Copy supplied.

Paul Hampel and Jeremy Kohler, “Attorney with County is Found Dead,” St.
Louis Post-Dispatch, Mar. 12, 2008. Copy supplied.

Taylor Bright, “Manager Pick Known for Unifying,” Charlotte Observer, June
17, 2007. Copy supplied.

Tim O’Neil, “Courthouse Shooting Reverberates Here,” St. Louis Post-Dispatch,
Mar. 12, 2005. Copy supplied.

Staff, “Metropolitan Area Digest; Westfall Family Will Give Check to SLU
High,” Si. Louis Post-Dispatch, Nov. 18, 2004. Copy supplied.

Jo Mannies, “Family and Friends at Funeral Pay Tribute to Buzz Westfall the
Man,” St. Louis Post-Dispatch, Nov. 1 , 2003. Copy supplied.

Donna Walter, “St. Louis County Exec. Westfall Remembered as a Regional
Leader, Friend,” Daily Record, Oct. 29, 2003. Copy supplied.

Staff, “St. Louis County Judicial Retentions,” St. Louis Post-Dispatch, Oct. 31,
2002. Copy supplied.

Staff, “South Post Briefs; Wojtkowski is Chairman of Boundary Commission,” St.
Louis Post-Dispatch, Dec. 9, 1999. Copy supplied.

Phil Sutin, “County Officials Urge Broader Cooperation from New Boundary
Panel,” St. Louis Post-Dispatch, Nov. 15, 1999. Copy supplied.

10

623

Bill Bell Jr., “Governor Picks County Counselor for Judgeship on the Circuit
Court,” St. Louis Post-Dispatch, Nov. 10, 1999. Copy supplied.

Ray Hartmann, “No Mercy for the Kirkwood Schools,” Riverfront Times , Oct. 27,
1999. Copy supplied.

Dan Mihalopoulos, “St. Louis County is Likely to Change Taxicab System at
Lambert Field Soon,” St. Louis Post-Dispatch, Sept. 23, 1999. Copy supplied.

Dan Mihalopoulos, “U.S. Insists on Getting Back $700,000 in Job-Training
Funds,” St. Louis Post-Dispatch, Sept. 22, 1999. Copy supplied.

Dan Mihalopoulos, “Judge Orders County to Let Black-Owned Taxi Firm Serve
Lambert Field,” St. Louis Post- Dispatch, Sept. 11, 1 999. Copy supplied.

Eddie Silva, “Pepper Game; Laumeier Sculpture Park Director Beej Nierengarten-
Smith Broke All the Rules and Ordered the Removal of Beverly Pepper’s
‘Cromlech Glen.’ Then the Artist Heard about It,” Riverfront Times, Sept. 8,

1999. Copy supplied.

Staff, “North Post Briefs; County Moves Toward Allowing Design-Build Work,”
St. Louis Post-Dispatch, My 19, 1999. Copy supplied.

Dan Mihalopoulos, “County Councilman Seeks Tougher Hate-Crimes Ordinance
After White Supremacists Shooting,” St. Louis Post-Dispatch, July 16, 1999.

Copy supplied.

Dan Mihalopoulos, “County Moves to Replace Faulty Fire Sprinklers,” St. Louis
Post-Dispatch, 3uly 14, 1999. Copy supplied.

Joan Little, “3 Charges Are Filed Against Former Affton Firefighter; Altercation
in March at a Stoplight Led to Current Legal Action,” St. Louis Post-Dispatch,
June 28, 1999. Copy supplied.

Dan Mihalopoulos, “County Could Define ‘Road Rage’ As A Crime; But Patrol
Officer, Lawyer Question the Measure’s Necessity, Enforceability,” St. Louis
Post-Dispatch, June 24, 1999. Copy supplied.

Dan Mihalopoulos, “County Lawyers Won’t Appeal Latest Ruling on
‘Kinkogate,’” St. Louis Post-Dispatch, June 18, 1999. Copy supplied.

Dan Mihalopoulos, “County Officials Aren’t Immune in ‘Kinkogate,’ Court
Rules,” St. Louis Post-Dispatch, June 3, 1999, Copy supplied.

11

624

Fred Faust, “ITI, St. Louis County Go to Court Over Software Dispute,” St. Louis
Post-Dispatch, May 31, 1999. Copy supplied.

Phil Sutin, “State Studies Revision of Boundary Commission,” St. Louis Post-
Dispatch. May 6, 1999. Copy supplied.

Lorraine Kee, “Despite its Raucous Past, Peerless Park is Going Quietly,” St.
Louis Post-Dispatch, May 4, 1999. Copy supplied.

Staff, “South Post Briefs; Polling Place Workers Could Get a Raise,” St. Louis
Post-Dispatch, Apr. 5, 1999. Copy supplied.

Dan Mihalopoulos, “Facility Is Lauded After Soggy Start,” St. Louis Post-
Dispatch. Feb. 15, 1999. Copy supplied.

Dan Mihalopoulos, “Official’s Side Jobs Violate Law, County Lawyer Says,” St.
Louis Post-Dispatch, Nov. 24, 1998. Copy supplied.

Mark Belko, “Legal Help Costly to County; Millions Spent on Private Lawyers
Despite Law Department Staff,” Pittsburgh Post-Gazette, Aug. 23, 1998. Copy
supplied,

Dan Mihalopoulos, “Councilwoman Refiles Open Meetings Lawsuit,” St. Louis
Post-Dispatch, July 23, 1998. Copy supplied.

Lance Williams, “County Will Drop Charges in Deal to Close Adult Store,” St.
Louis Post-Dispatch, July 8. 1 998. Copy supplied.

Joan Little, “County Municipality Will Survive - For a Few More Months,” St.
Louis Post-Dispatch, June 22, 1 998. Copy supplied.

Joan Little, “Judge Lets Stand County’s Vote to Disincorporate Peerless Park,” St.
Louis Post-Dispatch, June 16, 1998. Copy supplied.

Virginia Young, “From Here to Washington, Teen Smoking Is Targeted,” St.
Louis Post-Dispatch, June 1, 1998. Copy supplied.

Dan Mihalopoulos, “Federal Judge Refuses to Dismiss Lawsuit Filed Against St.
Louis County,” St. Louis Post-Dispatch, May 27, 1 998. Copy supplied.

Joan Little, “Peerless Park Appeals Move to Disincorporate; Attorney Argues that
City Isn’t Really One After All,” St. Louis Post-Dispatch, May 17, 1998. Copy
supplied.

Dan Mihalopoulos, “Suits Allege Racism in Housing, Lambert Cab Permits,” St.
Louis Post-Dispatch, May 15, 1998. Copy supplied.

12

625

Staff, “Metrowatch; Domestic Violence Jobs Win Funding,” St. Louis Post-
Dispatch, Mar. 29, 1998. Copy supplied.

Phil Sutin, “Ballot Language on Page Avenue Plan will be Simple and
Straightforward,” St. Louis Post-Dispatch , Mar. 13, 1998. Copy supplied.

Joan Little, “Trustee Would Wrap Up Disincorporation, County Official Says,”

St. Louis Post-Dispatch , Mar. 9, 1998. Copy supplied.

Dan Mihalopoulos, “Auditors Want County to Pay Back Funds,” Si. Louis Post-
Dispatch, Mar. 5, 1998. Copy supplied.

Dan Mihalopoulos, “County Council Member Sues County,” St. Louis Post-
Dispatch, Feb. 1 1, 1998. Copy supplied.

Dan Mihalopoulos, “Council OKs Extension of Page through County Park,” St.
Louis Post-Dispatch, Dec. 19, 1997. Copy supplied.

Rick DeSloge, “Bi-State Rolls with 13 Law Firms,” St. Louis Business Journal,
Nov. 24, 1997. Copy supplied.

Dan Mihalopoulos, “County Now Won’t Release Critical Job-Training Audit,” St.
Louis Post-Dispatch, Oct. 30, 1997. Copy supplied.

Margie Manning, “County Seeks $300,000 from Lemay Bank,” St. Louis Business
Journal , Oct. 27, 1997. Copy supplied.

Linda F. Jarrett, “O’Brien Vows to Continue Page Fight; Council Plans to Appeal
Federal Judge’s Ruling," St. Louis Post-Dispatch, Sept. 29, 1997. Copy supplied.

Dan Mihalopoulos, “Gumbo Jail’s Future in Hands of County, State,” St. Louis
Post-Dispatch, Sept. 6, 1997. Copy supplied.

Dan Mihalopoulos, “Targets in ‘Kinkogate’ Sue County,” St. Louis Post-
Dispatch, Aug. 26, 1997. Copy supplied.

William C. Lhotka, “Sex Shop, St. Louis County Clash Over Zoning; Lawyer
Says Business Would Be Forced to Move to Inferior Site,” St. Louis Post-
Dispatch, Aug. 25, 1997. Copy supplied.

Dan Mihalopoulos, “Harassment Alleged in County Suit,” St. Louis Post-
Dispatch, Aug. 13, 1997. Copy supplied.

Dan Mihalopoulos, “Whistle-Blower Bill Wins Bipartisan Backing,” St. Louis
Post-Dispatch, July 18, 1997. Copy supplied.

13

626

“Dan Mihalopoulos, “County Parks Worker Faces Theft Charges; Suspect
Accused of Stealing $ 1 6,000 by Creating Bogus Softball League,” St. Louis Post-
Dispatch, June 29, 1997. Copy supplied.

Staff, “Briefs; St. Louis County,” St, Louis Post-Dispatch, Apr. 25, 1 997. Copy
supplied.

Phil Sutin, “County Challenge to Cable TV Rate Hike Yields Small Refund or
Credit for Clients,” St. Louis Post-Dispatch, Mar. 6, 1997. Copy supplied.

Staff, “Briefs; Hiring for Smoking Ordinance is on Hold,” St. Louis Post-
Dispatch, Feb. 14, 1997. Copy supplied.

Phil Sutin, “Municipal League to Reconsider Use Tax; Voters Rejected the Idea
in August; Business Group Would Fight Such a Move,” St. Louis Post-Dispatch,
Jan. 6, 1997. Copy supplied.

Mark Schlinkmann, “Westfall To Oust County Official; Building Chief Opposed
Plumbing Code Revision,” St. Louis Post-Dispatch, Nov. 21, 1996. Copy
supplied.

Phil Sutin, “Westfall Moves to Get Resident of County onto Bi-State Board,” St.
Louis Post-Dispatch, OcL 24, 1996. Copy supplied.

Bill Smith, “Cab System at Airport is Running Ragged,” St. Louis Post-Dispatch,
Aug. 25, 1996. Copy supplied.

Bill Smith, “County is Breaking Its Taxicab Law; 70 Percent of Vehicles Got
Licenses Without Inspections,” St. Louis Post-Dispatch, Aug. 22, 1996. Copy
supplied.

Bill Smith, “County Taxi Supervisor May Have Broken Licensing Law,” St, Louis
Post-Dispatch, July 28, 1996. Copy supplied.

Bill Smith, “Cab Czar Got Car From Taxi Company; County Official Lacks Proof
He Bought Auto,” St. Louis Post-Dispatch, July 21, 1996. Copy supplied.

Mark Schlinkmann, “Crowd Control: Neighbors Upset With Packed Chib,” Sr.
Louis Post-Dispatch, May 9, 1996. Copy supplied.

Mark Schlinkmann, “Black Contractors Protest Over Work on Jail,” St. Louis
Post-Dispatch, Apr. 27, 1996. Copy supplied.

Charlene Prost and Mark Schlinkmann, “RRRUFF Going; Dog Museum Plans to
Move to N. Carolina,” St. Louis Post-Dispatch, Jan. 23, 1996. Copy supplied.

14

627

Mark Schlinkmann, “Regional Medical Center Moves to Close Meetings,” St.
Louis Post-Dispatch, Dec. 13, 1995. Copy supplied.

Staff, “Briefs; County Government,” St. Louis Post-Dispatch, Nov. 3, 1995.

Copy supplied.

Phil Sutin, “Speech Decrying Rezoning Ends on Surprising Note,” St. Louis Post-
Dispatch, Nov. 2, 1995. Copy supplied.

Mark Schlinkmann, “County Sues Wellston Over Debt for Police Service,” SI.
Louis Post-Dispatch, Oct. 31, 1995. Copy supplied.

Mark Schlinkmann, “South Pointe Letter Decried,” St. Louis Post-Dispatch, Oct.
30,1995. Copy supplied.

Mark Schlinkmann, “Nationally, Curbs on Tow Companies Up in the Air,” St.
Louis Post-Dispatch, Aug. 20, 1995. Copy supplied.

Mark Schlinkmann, “County Drops Bid to Limit Tow Fees; Lawyers Say Cities
Can’t Set Rates for Business,” St. Louis Post-Dispatch, Aug. 11, 1995. Copy
supplied.

Phil Sutin, “Six Chosen for Boundary Commission; Municipalities Make
Selections for Members of Reborn County Annexation Agency,” St. Louis Post-
Dispatch, July 27, 1995. Copy supplied.

Phil Sutin and Mark Schlinkmann, “Wildwood Backers Get Lift; Westfall’s
Statement Spurs New Optimism,”*. Louis Post-Dispatch, May 16, 1995. Copy
supplied.

Mark Schlinkmann, “Klan Figure Adopts Park for Cleanup,” St. Louis Post-
Dispatch, Apr. 15, 1995. Copy supplied.

Mark Schlinkmann, “Gaming Developers Covet North County; Port Authority
Sotting Out Bids From 3 Firms,” St. Louis Post-Dispatch, Apr. 7, 1995. Copy
supplied.

Phil Sutin, “Mayor, County at Odds on Sales Tax Issue,” St. Louis Post-Dispatch,
Apr, 3, 1995. Copy supplied.

Mark Schlinkmann, “Casinos Enlist Westfall Backers; Donations Are Moot,
County Counselor Says,”*. Louis Post-Dispatch, Mar. 30, 1995. Copy supplied.

Mark Schlinkmann, “Council Weighs Delay; Incorporation of Wildwood Faces
Challenge,” Si. Louis Post-Dispatch, Feb. 9, 1 995. Copy supplied.

15

628

Lia Nower, “Fire District Suing County Over Policy on Job Training, 1 ’ St. Louis
Post-Dispatch, Jan. 30, 1995. Copy supplied.

Phil Sutin, “Incorporate Wildwood by March 1, Backers Say; Proponents Ask
Westfall for Assurances before Feb. 7 Vote,” St. Louis Post-Dispatch, Jan. 19,
1995. Copy supplied.

Mark Schlinkmann and Lia Nower, “High Court Rulings are Guide; Nativity
Scene Was Allowed in Decision on Rhode Island Case,” St. Louis Post-Dispatch,
Nov. 30, 1994. Copy supplied.

Mark Schlinkmann, “Displays Spur Holiday Squabbles,” St. Louis Post-Dispatch,
Nov. 29, 1994. Copy supplied.

Theresa Tighe, “Controversy Bums in Clayton,” St. Louis Post-Dispatch , Nov.
28,1994. Copy supplied.

Mark Schlinkmann, “Chorus of Complaints Imperils Piano Lessons,” St. Louis
Post-Dispatch, Nov, 16, 1994. Copy supplied.

Barbara Yount, “County Weighs Decision on Three Annexations,” St. Louis Post-
Dispatch, Nov. 14, 1994. Copy supplied.

Phil Sutin, “Group Steps Up Opposition to Wildwood Annexation,” St. Louis
Post-Dispatch, Nov. 14, 1994. Copy supplied.

William C. Lhotka, “Residents to Vote on Wildwood; Judge Rejects Arguments
of County and 3 Cities,” St. Louis Post-Dispatch, Nov. 6, 1 994. Copy supplied.

Mark Schlinkmann, “Mathews Criticizes Handout of Brochure Featuring
Westfall,” St. Louis Post-Dispatch, Nov. 4, 1994. Copy supplied.

Mark Schlinkmann and Leo Fitzmaurice, “County Council Chief is Fighting
Restaurant,” St. Louis Post-Dispatch, Nov. 3, 1994, Copy supplied.

Phil Sutin, “Count)' Official Assails Plan; Proposal to Incorporate Wildwood and
Sappington-Concord Draws Fire,” St. Louis Post-Dispatch, Oct. 10, 1994. Copy
supplied.

Mark Schlinkmann, “Residents Seek Haven in Wildwood,” St. Louis Post-
Dispatch, Oct. 6, 1994. Copy supplied.

Leo Fitzmaurice, “Snags Keep River Rates Out of Flood-Damaged Homes,” St.
Louis Post-Dispatch, Sept. 8, 1994 [re-printed on Sept. 12, 1994 and Oct.6, 1994],
Copy supplied.

16

629

Leo Fitzmaurice, “Westfall to Attempt to Settle Dispute over Park Building,” St.
Louis Post-Dispatch, July 28, 1994. Copy supplied.

Leo Fitzmaurice, “Westfall to Intercede in Dispute over Building,” St. Louis Post-
Dispatch, July 18, 1994. Copy supplied.

Leo Fitzmaurice, “County, Veteran Cross Swords Over Old Army Building,” St.
Louis Post-Dispatch, July 14, 1994. Copy supplied.

Phil Sutin, “Council Braces to Handle Boundary Panel Issues,” St. Louis Post-
Dispatch, July 11, 1994. Copy supplied.

Fred W. Lindecke, “Metrolink Tax Hike Advances,” St Louis Post-Dispatch,

May 5, 1994. Copy supplied.

Thom Gross, “40-Ounce Problem Lessened; Groups, Brewers Joined to End
Blight of Bottles,” St. Louis Post-Dispatch , Apr. 24, 1 994. Copy supplied.

Mark Schlinkmann, “Flood Spurs Call to Halt Times Beach Incinerator,” St. Louis
Post-Dispatch, Apr. 23, 1994. Copy supplied.

Phil Sutin, “New Subdivision Plan Specifies Larger Lots,” St. Louis Post-
Dispatch, Apr. 18, 1994. Copy supplied,

Mark Schlinkmann, “County Spends $25,000 on a Guide to Services,” St. Louis
Post-Dispatch, Mar. 10, 1994. Copy supplied.

Jim Thomas, “Stadium Lease Deal Moves Slowly Forward,” St. Louis Post-
Dispatch, Dec. 31, 1993. Copy supplied.

William C. Lhotka, “County Won’t Pay Evictees of New Jail,” St. Louis Post-
Dispatch, Dec. 15, 1993. Copy supplied.

Carolyn Tuft and Phil Sutin, “County Fights Return Bout Over Escrows; Council
May Give Accounts to Treasurer ” St. Louis Post-Dispatch, Oct. 22, 1993. Copy
supplied.

Carolyn Tuft and Phil Sutin, “County Sues Over Subdivision Work; Seeks Money
to Finish Streets, Sewers Promised by Developers,” St. Louis Post-Dispatch, Oct.
15, 1993. Copy supplied.

Rob Donaldson, “Councilman Calls for Criminal Probe of Developer’s Escrow,”
St. Louis Business Journal, Aug. 30, 1993. Copy supplied.

17

630

Rob Donaldson, “County Set to Sue More Developers,” SI. Louis Business
Journal, Aug. 23, 1993. Copy supplied,

Carolyn Bower, “15 Cities May Seek a Hike to Offset Sales Tax Losses,” St.
Louis Post-Dispatch, July 26, 1993. Copy supplied.

Rob Donaldson, “Community Title Escrow Money Missing,” St. Louis Business
Journal , July 5, 1993. Copy supplied.

Rob Donaldson, “Missouri Takes Steps to Bird-Dog Home Builders’ Escrow
Accounts,” St. Louis Business Journal, June 28, 1993. Copy supplied.

Rob Donaldson, “Homeowners Left in Dark on Funds to Repair Streets,” St.
Louis Business Journal, May 17, 1993. Copy supplied.

Mark Schlinkmann, “County Council Adds Smoking Restrictions; For Now, No
Smoking in County Buildings ” St. Louis Post-Dispatch , Apr. 30, 1993. Copy
supplied.

Thom Gross, “Leasing Mistake Costs County 530,000,” St. Louis Post-Dispatch,
Apr. 23, 1993. Copy supplied.

Staff, “Briefs,” St. Louis Post-Dispatch, Apr. 22, 1993. Copy supplied.

Lia Nower, “Some Plan to Bypass Panel in Annexations,” St. Louis Post-
Dispatch, Apr. 12, 1993. Copy supplied.

Mark Schlinkmann, “Kersting Wants Jail Used for Day Care,” St. Louis Post-
Dispatch, Apr. 8, 1993. Copy supplied.

Mark Schlinkmann, “Court Decision Voids Board, Throws County Annexations
into Legal Limbo,” St. Louis Post-Dispatch, Mar. 26, 1993. Copy supplied.

Kim Bell, “Kersting Seeks Inquiry of County Jail Procedures,” St. Louis Post-
Dispatch, Feb. 27, 1993. Copy supplied.

Jack Grone, “County Sues Mr. Freeman, But He Won’t be in Court,” St. Louis
Business Journal, Feb. 22, 1993. Copy supplied.

Virgil Tipton and Louis J. Rose, “County Facing Land Battles to Build Jail;
Owners, County Officials Far Apart on Worth of Buildings in Clayton,” St. Louis
Post-Dispatch , Feb. 7, 1993. Copy supplied.

Jack Grone, “County Hits Home Builders, Escrow Agents with 39 Suits,” St.
Louis Business Journal, Feb. 1,1993. Copy supplied.

18

631

Virgil Tipton, “New Jail May Split Court System, Judges Fear,” St. Louis Post-
Dispatch i, Jan, 31, 1993. Copy supplied.

Jack Grone, “County Probe Targets Home Builders,” Si. Louis Business Journal ,
Jan. 25, 1993. Copy supplied.

Fred Faust, “County to Study Escrow Laws,” St. Louis Post-Dispatch , Jan. 22,
1993. Copy supplied.

Rob Donaldson, “FBI Investigating Home Builders’ Escrow Accounts,” Si. Louis
Business Journal, Jan. 18, 1993. Copy supplied.

Staff, “Police/Crime; Court Action,” St. Louis Post-Dispatch, Jan. 14, 1993.

Copy supplied.

Victor Volland, “Rabbi Shifts Quest for Menorah,” St. Louis Post-Dispatch, Dec.
16,1992. Copy supplied.

Virgil Tipton, “Night Court is On Way for 3 Areas in County,” Si. Louis Post-
Dispatch, Sept. 30, 1992. Copy supplied.

Phil Sutin, “Drunken Drivers Face Additional Penalty; New Law Allows Judges
to Assess Costs to Reimburse Police,” St. Louis Post-Dispatch, Aug. 20, 1992.
Copy supplied.

William C. Lhotka, “Pediatrician Resigns Post, Cites Change,” St. Louis Post-
Dispatch, Aug. 6, 1992. Copy supplied.

Virgil Tipton, “St. Louis Count)' Official Violated Building Code,”*. Louis
Post-Dispatch , July 30, 1992. Copy supplied.

Virgil Tipton and William C. Lhotka, “1-1/2 Years Needed for Courthouse
Security Plan; Immediate Changes Will Add Searches, 7 Security Guards,” St.
Louis Post-Dispatch, May 7, 1992. Copy supplied.

William C. Lhotka, “Westfall Pledge Nets 1.36 Million; Interest on Tax Revenue
Benefits Schools, Others,” St. Louis Post-Dispatch, Mar. 24, 1992. Copy
supplied.

William C. Lhotka, “Plans Aim to Ease Traffic Court Jam,” St. Louis Post-
Dispatch, Dec, 24, 1991. Copy supplied.

Virgil Tipton, “Shear’s Bills Top $4,200; County Councilman’s Expenses
Outstrip Total by Other Members,” St. Louis Post-Dispatch, Dec. 12, 1991. Copy
supplied.

19

632

Virgil Tipton, “County Council Has Not [sic] Limit on Reimbursement,” St. Louis
Post-Dispatch, Dec.. 12, 1991, Copy supplied.

Leo Fitzmaurice, “A Petition that Could Lead to An Election,” St. Louis Post-
Dispatch, Nov. 28, 1991. Copy supplied.

Virgil Tipton, “Westfall-McGee Fight Ends; Settlement Required Personnel
Director’s Resignation,” St. Louis Post-Dispatch, Aug. 3, 1991. Copy supplied.

Leo Fitzmaurice, “Officials Discuss Revising ‘Heritage’ Classification of Cliff
Cave County Park,” St. Louis Post-Dispatch , July 15, 1991. Copy supplied.

Virgil A. Tipton, “Incinerator Rules Likely in County,” St. Louis Post-Dispatch,
July 9, 1991. Copy supplied.

Patrick E. Gauen, “High Court Ruling Unlikely To Cover Illinois Dancers,” St.
Louis Post-Dispatch, June 22, 1991. Copy supplied.

Virgil Tipton, “Westfall Backs Bill Against Hate Crimes,” St. Louis Post-
Dispatch, May 31, 1991. Copy supplied.

Carolyn Bower, “U. City Residents Trying to Keep Blood Center Out,”*. Louis
Post-Dispatch, May 23, 1991. Copy supplied.

Staff “Westfall’s Advisers: Politicians, Professionals, Pals; St. Louis County
Executive Calls on Familiar, New Faces for Fresh Solutions to Old Problems,” St.
Louis Post-Dispatch, May 19, 1991. Copy supplied.

Tim Poor, “Confess: False Admissions of Crime Are Called Rare,” St. Louis Post-
Dispatch, Dec. 3, 1990. Copy supplied.

William C. Lhotka, “Discrepancies Noticed in Murder Confession,” St. Louis
Post-Dispatch, Nov. 28, 1990. Copy supplied.

William C. Lhotka and Joan Little, “Suspect in Murder of Che Sims Freed; Jail
Inmate Charged,” St. Louis Post-Dispatch, Nov. 27, 1990. Copy supplied.

Ann Scales Cobbs, “Suspect in Murder to Remain in Jail,” St. Louis Post-
Dispatch, Nov. 22, 1990. Copy supplied.

David Aguillard, “Pine Lawn OKs Wren as Police Chief” St. Louis Post-
Dispatch, Sept. 20, 1990. Copy supplied.

Louis J. Rose and Cynthia Todd, “New Trial Sought in ’83 Killing,” St. Louis
Post-Dispatch, July 30, 1990. Copy supplied.

20

633

Fred W. Lindecke, “Complaints about MSD’s Campaign Spending Get
Nowhere,” St. Louis Post-Dispatch , Apr. 22, 1 990. Copy supplied.

Staff, “Police/Courts; Embezzlements,” St. Louis Post-Dispatch, Mar. 23, 1990.
Copy supplied.

William C. Lhotka, “Woman, 18, Also Charged in Killing of 2,” St. Louis Post-
Dispatch, Jan. 5, 1990. Copy supplied.

Cynthia Todd, “Outraged Prosecutor Wants Higher Bond,” St. Louis Post-
Dispatch, Jan. 3, 1990. Copy supplied.

Carolyn Bower, “Shooting Suspect Set Ambush, Police Say,” St. Louis Post-
Dispatch, Dec. 22, 1989. Copy supplied.

William C. Lhotka, “Elizabeth Danforth Sentenced,” St. Louis Post-Dispatch,
Sept. 9, 1989. Copy supplied.

Fred W. Lindecke, “Host of Hopefuls Enliven Annual Meeting of County
Democrats,” St. Louis Post-Dispatch, June 25, 1 989. Copy supplied.

Bill Bryan, “City Officer, School Aid Focus of Drug Incident,” St. Louis Post-
Dispatch, Apr. 21, 1989. Copy supplied.

Staff, “Jury Won’t Indict Gilmour on Sex Charge,” Los Angeles Times, Dec. 28,
1988. Copy supplied.

William C. Lhotka, “Grand Jury Hears Testimony in Gilmour Case,” St. Louis
Post-Dispatch, Dec. 14, 1988. Copy supplied.

William C. Lhotka, “Jury Opens Inquiry on Gilmour Case,” St. Louis Post-
Dispatch, Oct. 7, 1988. Copy supplied.

13. Judicial Office : State (chronologically) any judicial offices you have held, including
positions as an administrative law judge, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.

1 was appointed by the Governor as a Circuit Judge for the 2 I s ' Judicial Circuit in the
State of Missouri and took office in January 2000. I was retained by the voters in 2002
and again in 2008. The Circuit Court is a court of original jurisdiction over all cases,
including civil and criminal matters. During my tenure, I was elected Assistant Presiding
Judge by my judicial colleagues in the Circuit and served in that office from 2005 to
2009; I was elected as Presiding Judge and have served in that capacity from 2009 to
present.

21

634

a. Approximately how many cases have you presided over that have gone to verdict
or judgment? 326

i. Of these, approximately what percent were:

jury trials:

42%

bench trials:

58%

civil proceedings:

85%

criminal proceedings:

15%

b. Provide citations for all opinions you have written, including concurrences and
dissents.

All of my opinions are unpublished; therefore, there are no citations to
publication.

c. For each of the 10 most significant cases over which you presided, provide: (1) a
capsule summary of the nature the case; (2) the outcome of the case; (3) the name
and contact information for counsel who had a significant role in the trial of the
case; and (3) the citation of the case (if reported) or the docket number and a copy
of the opinion or judgment (if not reported).

1 . Clement v. Wyoming Fin. Servs. Inc., Cause No. 02CC-1 866 (2002 -
2003)

Plaintiff filed a two-count petition claiming a breach of fiduciary duty
and violations of the Missouri Securities Act, The case proceeded to
trial and the jury rendered a defendants’ verdict. No appeal was filed.

Plaintiff’s Counsel: Steve Koslovsky

2458 Old Dorsett Road, Suite 230
St. Louis, Missouri 63043
(314)222-4066

Defendants’ Counsel: Mitch Margo

130 South Bemiston, Suite 200
Clayton, Missouri 63105
(314)725-8788

2. State of Missouri v. Kuchar , Cause No. 02CR-1 880 (2002 — 2003)

The defendant, a priest, was charged with six counts of statutory
sodomy. In May 2003, the case proceeded to trial. The jury
could not agree on a verdict and a mistrial was declared. The case
was retried in August 2003, resulting in guilty verdicts on three of the
six counts. Pursuant to the jury’s verdict, the defendant was

22

635

sentenced to three consecutive one-year terms of imprisonment.
Defendant waived his right to appeal.

State’s Counsel: RobLivergocd

1 1 1 South 1 Oth Street, 20th Floor
St. Louis, Missouri 63102
(314) 539-2200

Defendant’s Counsel: Scott Rosenblum

130 South Central
Clayton, Missouri 63105
(314) 862-4332

3. Affton Youth Hockey v. Rink-Tec Int 7, Cause No. 03CC-4856 (2003 -
2006)

Plaintiff filed a multi-count petition asserting claims for negligence,
misrepresentation, product liability, and punitive damages. The case
involved the acquisition of a building and ice rink. The plaintiff claimed
the ice rink was defective and that certain defendants concealed that fact.
The case proceeded to trial and the jury rendered a verdict for the
defendants.

Plaintiff’s Counsel: Mike Wilson

10 South Broadway

St. Louis, Missouri 63102

(314)241-9090

Defendants’ Counsel: Charles Merz

1015 Locust Street

St. Louis, Missouri 63101

(314)621-3787

Tom Magee

200 North Broadway, Suite 700
St. Louis, Missouri 63102
(314) 421-5364

4. Royal Waterbeds, Inc, v. Vohsen & Sons, Inc., Cause No. 04CC-3713
(2004-2006)

Plaintiff sued two construction companies for negligence, claiming
water damage and subsequent lost profits. After trial, the jury returned a
verdict for $722,758 against Vohsen & Sons, Inc. and a defendant’s
verdict for Kinder Construction, Inc.

23

636

Plaintiffs Counsel: Kevin Sullivan

3415 Hampton

St. Louis, Missouri 63139

(314) 781-3222

Defendants’ Counsel: Bob Wulff

515 Olive Street, Suite 1100
St. Louis, Missouri 63101
(314)552-4054

Ken Halvachs
500 West Main Street
Belleville, Illinois 62223
(618)277-9000

5. Wandersee and Advanced Cleaning Tech., Inc. v. BP Prods. N. Am.,
Cause No. 03CC-1622 (2003 -2006)

This case arose from a police investigation initiated by the defendants,
who accused the plaintiffs of stealing a car wash system belonging to
BP. That investigation led to the filing of criminal charges against the
plaintiffs. Following dismissal of the charges, plaintiffs sued the
defendants for injurious falsehood, defamation and prima facie tort.
Complex statute of limitation issues were raised in summary judgment
motions. Those issues were resolved by writ of prohibition from the
Missouri Supreme Court, see 163 SAV.3d 922 (Mo. 2005). The case
also involved complex evidentiary issues related to categories of
damages. After a two-week trial, the jury returned a verdict for
plaintiffs against BP in the amount of $605,350 and a verdict for the
other defendant. I overruled defendant BP’s motion for judgment
notwithstanding the verdict. On appeal, the Court of Appeals reversed,
but the Missouri Supreme Court accepted transfer and affirmed the
judgment, at 263 S.W.3d 623 (Mo. 2008).

Plaintiffs Counsel: Joe Dullc

7733 Forsyth Boulevard
St Louis, Missouri 63105
(314)727-7777

Defendants’ Counsel: Dawn Johnson

Robert Duckels
10 South Broadway, Suite 200
St. Louis, Missouri 63102
(314)241-9090

24

637

Don O’Keefe
2000 Equitable Building
1 0 South Broadway
St. Louis, Missouri 63 1 02
(314) 421-5545

6. Slate v. Salter, Cause No. 05CR-823A (2005 - 2006)

The defendant was the president of a corporation charged with failure to
maintain workers’ compensation insurance, which is a felony. The
defendant filed a motion to dismiss the charge, challenging its
constitutionality. I overruled the motion and found the statute to be
constitutional. The case proceeded to trial and the jury returned a guilty
verdict. The conviction and judgment of the court were affirmed by the
Missouri Supreme Court, at 250 S.W.Bd 705 (Mo. 2008).

State’s Counsel: Ed Me Sweeney

1 00 South Central
Clayton, Missouri 63105
(314)615-2600

Defendant’s Counsel: Irl Baris

1221 Locust Street, Suite 1000
St. Louis, Missouri 63103
(314)421-6644

7. Stover v. BNSF Ry. Co . , Cause No. 06CC- 1811 (2006-2008)

Plaintiff was an employee of the railroad who claimed conditions in the
workplace caused him to have cumulative trauma injuries. Plaintiff
brought suit under two federal statutes, the Federal Employers’ Liability
Act and the Locomotive Inspection Act. Complex evidentiary issues
were raised in the over forty motions in limine ruled on by the court. A
jury trial commenced and after a week of trial the parties settled the
case.

P laintiff s Counsel : Roger Denton

100 South 4th Street, Suite 900
St. Louis, Missouri 63102
(314)621-6115

Defendant’s Counsel: William Brasher

21 1 North Broadway, Suite 2300
St. Louis, Missouri 63102
(314)621-7700

25

638

8. Smith v. Univ. Hematology Oncology, Inc., Cause No. 07CC-2249
(2007-2009)

This case involved a dispute between a doctor and the medical group
that previously employed him. The doctor claimed in a six-count
petition that he was owed substantial amounts of money pursuant to
employment agreements. The case proceeded to trial and the jury
returned a verdict and judgment for plaintiff. The case was settled
before an appeal was filed.

Plaintiffs Counsel: Gabriel Gore

7733 Forsyth Boulevard, Suite 1410
St. Louis, Missouri 63105
(314) 889-7377

Defendant’s Counsel: Joe Dulle

7733 Forsyth Boulevard
St. Louis, Missouri 63105
(314)727-7777

9. Greene v. S.S.M. St. Charles Clinic Med. Grp., Cause No. 05CC-4180
(2005-2009)

Plaintiffs filed this medical negligence case alleging a drug prescribed
by the defendants caused drug toxicity leading to decedent’s death.
There were a number of complex legal issues in the case. After more
than a week of evidence, the jury returned verdicts for the defendants.
No appeal was filed.

Plaintiffs Counsel: Gary Growe

Jason Charpontier
7733 Forsyth, Suite 325
St. Louis, Missouri 63105
(314)725-1912

Defendants’ Counsel: David Ott

Tim Gearin

7700 Forsyth

St. Louis, Missouri 63105

(314)621-5070

26

639

Thaddeus Eckenrode
Lisa Howe

8000 Maryland, Suite 1300
St. Louis, Missouri 63 1 05
(314)726-6670

10. State v. Tolen, Cause No. 07SL-CR2791 (2007-200S)

The defendant was an attorney who was accused of providing troubled
teenage boys with bikes, cars, liquor, and other items in return for sex.
There was also an allegation that he attempted to coerce one boy to lie
about these occurrences in a child custody case. Seven search warrants
were executed during the course of the police investigation, leading to
multiple motions to suppress evidence. There were a number of
complex legal issues involved in the case. The defendant proceeded to
trial on thirty-seven counts of statutory sodomy and one count of
attempted witness tempering. After more than two weeks of evidence,
the defendant was found guilty of all but one charge and was sentenced
to sixty-five years in prison. The convictions were affirmed on appeal,
at 304 S.W.3d 229 (Mo. App. E.D. 2009).

State’s Counsel: Kathi Alizadeh

100 South Central
Clayton, Missouri 63105
(314)615-2600

Defendant’s Counsel: Patricia High

Cassandra Williams
500 North Walker Avenue
Suite E-400

Oklahoma City, Oklahoma 73102
(405) 272-4758

d. For each of the 1 0 most significant opinions you have written, provide: (1 )

citations for those decisions that were published; (2) a copy of those decisions that
were not published; and (3) the names and contact information for the attorneys
who played a significant role in the case.

1. Hensley v. Ursuline Acad, Cause No. 07CC-3783, aJjTd, 310 S,W.3d
712 (Mo. App. E.D. 2010)

Plaintiff’s Counsel: Patricia Wilcox

1015 Locust, Suite 400
St. Louis, Missouri 63101
(314) 588-9500

27

640

Defendants’ Counsel: T. Christopher Bailey

Bernard Huger

2000 Equitable Building

10 South Building

St. Louis, Missouri 63 1 02

(314) 241-9090

2. Smotherman v. Mo. Dep 7 of Mental Health, Cause No. 08SL-CC3667

Plaintiff’s Counsel: Howard Shalowitz

7108 Northmoor Drive
St. Louis, Missouri 63105
(314)277-9977

Defendant’s Counsel: Michael Cherba

Missouri Attorney General’s Office
P.O. Box 861

St. Louis, Missouri 63188
(314)340-7544

3. Legatus Emergency Servs., LLC v. Charles L. Crane Agency, Cause No

05CC-2666

Plaintiffs Counsel: Tim Noelker

Selth Albin
Holly Yaokum
One U.S. Bank Plaza
St. Louis, Missouri 63101
(314)552-6521

Defendants’ Counsel: Dan Farroll

103 West Vandalia Street, Suite 300
P.O. Box 510

Edwardsville, Illinois 62025
(618) 656-0184

4. Visnaw v. Marianist Province, Cause No. 06CC-00008, rev ’d 258

S.W.3d 809 (Mo. Banc 2008)

Plaintiffs Counsel: Daniel Craig

1125 Grand Boulevard, Suite 900
Kansas City, Missouri 64106
(816)221-7772

28

641

Defendants’ Counsel:

Gerard Noce

800 Market Street, Suite 2300

St. Louis, Missouri 63101
(314)480-4160

J. Martin Hadican

225 South Meramec, Suite R32T
St. Louis, Missouri 63105
(314)863-0050

Vinson v. Daughhelee, Cause No. 07CC-93 1, aff d, 294 S.W.3d 135
(Mo. App. E.D. 2009)

Plaintiffs 1 Counsel:

Steve Hamburg

23 1 South Bemiston, Suite 1111
Clayton, Missouri 63105
(314) 725-8000

Ed Dowd

Robert Epperson

7733 Forsyth, Suite 1410

St. Louis, Missouri 63105
(314) 889-7300

Defendants’ Counsel:

David Stoeberl

120 South Central Avenue

Suite 1800

St. Louis, Missouri 63105
(314)854-8600

John Hessel

500 North Broadway, Suite 2000
St. Louis, Missouri
(314) 444-7735

Glenn Etelson

11921 Rockville Pike

Rockville, Maryland 20852
(301) 231-0956

29

642

6. Luberda v. Mo. Dep't ofSoc. Servs., Cause Nos. 05CC-5022, 06CC-

1247

Plaintiffs Counsel: George Luberda

225 South Meramec
St. Louis, Missouri 63 1 05
(314) 721-2223

Defendants’ Counsel: Sarah Dobecki

Missouri Attorney General’s Office
Supreme Court Building
207 West High Street
P.O. Box 899

Jefferson City, Missouri 65102
(573) 751-3321

7. Sinclair v. United Methodist Church , Cause No. 05CC-5352

Plaintiff’s Counsel: Larry Altman

621 North Skinker Boulevard
St. Louis, Missouri 63130
(314)205-9544

Defendant’s Counsel: Stanley Schroeder

222 South Central Avenue, Suite 901
Clayton, Missouri 63105
(314) 863-0092

8. Walker Servs., Inc. v. Mo. Dep't of Ins., Cause Nos. 07CC-248, 07CC-

2000, off d, 299 S.W.3d 677 (Mo. App. E.D. 2009)

Plaintiffs Counsel: Tom Lake

1111 Bonhomme
Clayton, Missouri 63 1 05
(314) 863-0077

Defendant’s Counsel: Mary Erickson

Missouri Attorney General’s Office
Supreme Court Building
207 West High Street
P.O. Box 899

Jefferson City, Missouri 65102
(573)751-3321

30

643

9. Barlow v. Boehme, Cause No. 08SL-CC4160

Plaintiffs’ Counsel: Mark Levison

10 South Broadway, Suite 1300
St. Louis, Missouri 63 1 02
(314)613-2539

Defendants’ Counsel: Brian McGovern

400 South Woods Mill Road
Suite 250

Chesterfield, Missouri 63017
(314)392-5200

10. Harris v. City of Pine Lawn, Cause No. 06CC-3096

Plaintiffs Counsel: Venus Harry

Brandi Miller

447 North Euclid

St. Louis, Missouri 63 1 08

(314)367-1059

Defendant’s Counsel: Donnell Smith

1545 Woodson Road

St. Louis, Missouri 63 1 14

(314)426-0056

e. Provide a list of all eases in which certiorari was requested or granted.

None, to the best of my knowledge.

f. Provide a brief summary’ of and citations for all of your opinions where your
decisions were reversed by a reviewing court or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings. If
any of the opinions listed were not officially reported, provide copies of the
opinions.

Stabler v. Stabler, 2010 WL 4840869 (Mo. App. E.D. 2010). The Missouri Court
of Appeals affirmed in part and reversed in part the Court's ruling on two motions
to dismiss. This case was filed in the Probate Division of the Court asserting
claims against respondents in their capacities as trustees of a trust and as personal
representatives of an estate. The Appellate Court affirmed the ruling dismissing
one count of the petition for lack of standing but found that there may be facts
from which the petitioner could prove standing to proceed on two other counts.

Hansen v. Halliburton, 2010 WL 4340690 (Mo. App. E.D. 2010). The Missouri
Court of Appeals reversed and remanded, finding that the defendant met its

31

644

burden of proof on a counterclaim and that there was error in the calculation of
plaintiff’s damages,

Thomas v. Brandt, 2010 WL 3637530 (Mo. App. E.D. 2010). This was a
negligence action filed by decedent’s family against publicly-employed
emergency medical personnel and their employer as a result of their response to a
91 1 call. I granted summary judgment for defendants, finding they were entitled
to official immunity pursuant to the principles established in Richardson v. City of
St. Louis, 293 S.W.3d 133 (Mo. App. E.D. 2009). On appeal, summary judgment
was reversed and the case remanded on the grounds that defendants were not
acting in a true emergency situation and thus were not protected by official
immunity. A motion for rehearing or transfer to the Supreme Court was denied.

Spicer v. Spicer Revocable Living Trust, 2010 WL 2378000 (Mo. App. E.D.

2010). I entered a judgment granting the defendant’s motion to enforce
settlement. The Court of Appeals reversed for lack of jurisdiction, holding that
defendant’s motion was not an authorized post-trial motion that would have
extended the trial court’s jurisdiction beyond 30 days following its entry of
judgment. Respondent’s application for transfer was sustained and the case has
been transferred to the Missouri Supreme Court (SC91 1 17, Sept. 21, 2010).

State v. Seeler ,316 S.W.3d 920 (Mo. 2010), Defendant was convicted of first-
degree involuntary manslaughter. In a four-to-three decision the Missouri
Supreme Court reversed, holding that the prosecution should not have been
allowed to amend the indictment during the course of the trial because it was
prejudicial to the defendant.

State ex ret. Marianist Province v. Ross, 258 S.W.3d 809 (Mo. 2008). A former
student filed suit against the Marianist Province for sexual abuse. The defendant
moved for summary judgment alleging that the statute of limitations had run, and
the plaintiff argued he did not bring the case earlier because he had not
remembered the abuse due to repressed memory. I denied the motion and
defendant filed a writ of prohibition. The Missouri Supreme Court granted the
writ, finding I erred in overruling the motion for summary judgment. The court
found that the statute of limitations began to run when plaintiff turned 2 1 because
the conduct he remembered was sufficient to put a reasonably prudent person on
notice of a potentially actionable injury.

McFadden v. State, 256 S.W.3d 103 (Mo. 2008). Petitioner filed forpost-
conviction relief past the statutorily-required date. I granted the State’s motion to
dismiss, which was affirmed by the Court of Appeals. The Missouri Supreme
Court accepted transfer and reversed, finding an exception to the statutory rule,
specifically, abandonment by counsel.

State v. Presberry, 128 S.W.3d 80 (Mo. App. E.D. 2008). The defendant was
convicted by a jury of first degree robbery, stealing a credit card, fraudulent use of

32

645

a credit device, attempted first degree robbery, and tampering with a motor
vehicle. The Court of Appeals, in a divided opinion, found the trial court
improperly admitted identification testimony by a police witness. The Court of
Appeals further found the evidence insufficient to support certain convictions.

The case was reversed and remanded in part and reversed in part. On remand the
defendant pleaded guilty to certain charges

Topps v. City of Country Club Hills, 236 S. W.3d 660 (Mo. App. E.D. 2007). I
granted defendant’s motion for summary judgment and the Court of Appeals
reversed, finding that there was a genuine issue of material fact. After remand,
additional stipulated facts were submitted to the court and again, I granted the
motion for summary judgment. This decision was affirmed by the Court of
Appeals, 272 S.W.3d 409 (Mo. App. E.D. 2008).

State v. McFadden, 191 S.W.3d 648 (Mo. 2006). The defendant was convicted of
Murder First Degree and the jury recommended the death penalty. The Court
followed the jury’s recommendation and sentenced the defendant. The Missouri
Supreme Court reversed the conviction, finding Batson violations and that the
reasons given by prosecutors for their peremptory strikes were pretextual.

State ex rel. B.P. Prods, v. Ross, 163 S.W.3d 922 (Mo. 2005). A car wash
servicing company and its president filed a multi-count petition against B.P.
Products for injurious falsehood, defamation, and prima facie tort. B.P. Products
moved for summary judgment on statute of limitations and I granted the motions
in part. B.P. applied for a writ of prohibition and the Missouri Supreme Court
granted the writ in part and denied the writ in part, thereby reversing a portion of
the order I entered.

State v. Jordan, 181 S.W.3d 588 (Mo. App. E.D. 2005). In this case the
defendant was charged with several counts resulting from a police stop and high
speed chase. During the course of the incident, the defendant struck an officer
with his car and rammed another police car. After a jury trial, the defendant was
found guilty of two counts of assaulting a law enforcement officer, armed
criminal action, felony resisting arrest, felony driving while intoxicated, and
driving while revoked. The Court of Appeals affirmed the judgment in part and
reversed the count for felony resisting arrest, finding the evidence was insufficient
to support a finding that the defendant knew the officers were attempting to arrest
him for a felony.

Jefferson v. Am. Fin. Grp., 163 S.W.3d 485 (Mo. App. E.D. 2005). The plaintiff
sued a mortgage company for breach of fiduciary duty. After a bench trial, I
found in favor of the plaintiff and awarded damages. The Court of Appeals
affirmed the judgment but remanded with instructions to increase the amount of
the award.

33

646

Stale v. Hopkins , 140 S.W,3d 143 (Mo. App. E.D. 2004). Defendant was
convicted of burglary first degree, assault first degree and two counts of armed
criminal action. The Court of Appeals reversed and remanded due to Batson
violations, and reversed and discharged one count of armed criminal action due to
a lack of evidence. The case was retried and the defendant was convicted of
burglary first degree, assault first degree and one count of armed criminal action.
The convictions were affirmed on appeal, at 187 S.W.3d 921 (Mo. App. E.D.
2006).

State v. Williams , 85 S.W.3d 80 (Mo. App. E.D. 2002). The defendant was found
guilty by a jury of felony failure to appear. The Court of Appeals reversed the
conviction, finding the evidence was insufficient to support the verdict.

g. Provide a description of the number and percentage of your decisions in which
you issued an unpublished opinion and the maimer in which those unpublished
opinions are filed and/or stored.

All of my decisions are issued in judgments that are unpublished. These
unpublished judgments are contained in the individual court files in the Circuit
Clerk’s office. Many of these judgments are relatively routine; some may be by
default or consent of the parties or based on undisputed facts. Although some of
these judgments contain my own legal conclusions, our statewide computer
system has no mechanism to separately identity these from the thousands of
judgments I have entered. In my years as a judge, I estimate 1 have entered over
7,000 judgments.

h. Provide citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, provide copies of the opinions.

I have not authored significant opinions on federal or state constitutional issues.

i. Provide citations to all cases in which you sat by designation on a federal court of
appeals, including a brief summary of any opinions you authored, whether
majority, dissenting, or concurring, and any dissenting opinions you joined.

I have not sat by designation on a federal court of appeals.

14. Recusal: If you are or have been a judge, identify the basis by which you have assessed
the necessity or propriety of recusal (If your court employs an "automatic" recusal system
by which you may be recused without your knowledge, please include a general
description of that system.) Provide a list of any cases, motions or matters that have
come before you in which a litigant or party has requested that you recuse yourself due to
an asserted conflict of interest or in which you have recused yourself sua sponte. Identify
each such case, and for each provide the following information:

34

647

a. whether your recusa! was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any other person or interested party ; or if you
recused yourself sua sponte;

b. a brief description of the asserted conflict of interest or other ground for recusal;

c. the procedure you followed in determining whether or not to recuse yourself,

d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any
other ground for recusal.

I have followed the Missouri Statutes, applicable case law, and the Code of
Judicial Conduct when considering recusal. In my years as a trial judge, I have
been assigned thousands of cases and have on occasion entered an order of
recusal. I have always reviewed my cases to determine if I had a close
relationship with a party, and to identify any witnesses or counsel that would
affect my impartiality or create an appearance of impropriety. I have attempted to
search the Circuit Court’s computer system for all cases in which I have entered
an order of recusal, but the system does not have that capability. My brother-in-
law is a partner in the St. Louis law firm. Capes, Sokol, Goodman and Sarachan,

1 presently recuse and would recuse, if confirmed, in any case involving any
lawyer in his firm. For several years I recused in any case involving St. Louis
County Government because of my former position as St. Louis County
Counselor. I continue to recuse and would continue to recuse on any case
involving St. Louis County Government, if the subject matter of the litigation
involves a policy or practice that I helped to formulate.

In searching ray records, I located the case of Susan Mello v. St, Louis County
Circuit Court, Cause No. 09SL-CC3509, in which the plaintiff filed a motion for
recusal for cause. The plaintiff is a lawyer who alleged that two other judges in
the Circuit had failed to provide accommodations for her disability by denying
requests for continuance. The plaintiff filed a complaint with the Missouri
Commission on Human Rights, which was denied. The case was filed, assigned
to my division and, shortly thereafter, the motion for recusal was filed. I
reviewed the motion consistent with Missouri Statutes and the applicable case
law, found the motion to be procedurally and substantively inadequate, and
denied the motion. As the case progressed, it became clear that policies of the
entire Circuit were at issue. Due to my role as Presiding Judge, I entered an order
of recusal on my own motion and the case was assigned to a judge from a
different circuit.

15. Public Office, Political Activities and Affiliations :

a. List chronologically any public offices you have held, other than judicial
offices, including the terms of service and whether such positions were elected

35

648

or appointed, if appointed, please include the name of the individual who
appointed you. Also, state chronologically any unsuccessful candidacies you
have had for elective office or unsuccessful nominations for appointed office.

St. Louis County Counselor, appointed by County Executive George “Buzz”
Westfall, 1991 to 2000.

I have not been a candidate for elective office, nor have I been an
unsuccessful nominee for an appointed office.

b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election committee. If you have
ever held a position or played a role in a political campaign, identify the
particulars of the campaign, including the candidate, dates of the campaign,
your title and responsibilities.

1 was an informal advisor to George “Buzz” Westfall in his campaigns for St.
Louis County Executive in 1994 and 1998. 1 held no position with the
campaigns and was not compensated.

1 6. Legal Career: Answer each part separately.

a. Describe chronologically your law practice and legal experience after
graduation from law school including:

i. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;

I did not serve as a clerk to a judge.

ii. whether you practiced alone, and if so, the addresses and dates;

I have never practiced law alone.

iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.

1979-1991

St. Louis County Prosecuting Attorney’s Office
7900 Carondelet
Clayton, Missouri 63105
Assistant Prosecuting Attorney

36

649

1984

Missouri Attorney General’s Office
Supreme Court Building
Post Office Box 899
Jefferson City, Missouri 65102
Special Assistant Attorney General

1989

St. Charles County Prosecuting Attorney’s Office

300 North 2nd Street

St. Charles, Missouri 63301

Special Assistant Prosecuting Attorney

1991-2000

St. Louis County Government
41 South Central
Clayton, Missouri 63105
County Counselor

iv. whether you served as a mediator or arbitrator in alternative dispute

resolution proceedings and, if so, a description of the 1 0 most significant
matters with which you were involved in that capacity.

1 have not served as a mediator or arbitrator.

b. Describe:

i. the genera] character of your law practice and indicate by date when its
character has changed over the years.

I began my legal career with the St. Louis County Prosecuting Attorney’s
Office. From 1979 to 1981, 1 handled traffic and misdemeanor cases
along with preliminary hearings on felony cases. Beginning in 1981, 1
began handling both misdemeanor and felony cases. By 1983, 1 was
handling exclusively felony cases and was assigned to present all cases to
the SL Louis County Grand Jury. In 1986, 1 was appointed Assistant
Chief Trial Attorney, handling more complex and serious felony cases. In
addition, I supervised approximately twenty attorneys assigned to the
Associate Circuit divisions. In 1988, 1 was appointed Chief Trial
Attorney, supervising the full trial staff of approximately forty-five
attorneys and assigned the most serious felony cases. In addition, I had
special appointments to investigate and prosecute murder cases in 1984
and 1989. My area of practice during those years was exclusively
criminal law.

37

650

From 1991 to 2000, 1 served as County Counselor for St, Louis County. I
supervised a law office of over twenty attorneys, along with paralegals and
secretaries. The County Counselor’s Office is the civil law office for St.
Louis County Government representing all county departments and
agencies, the County Council, and the County Executive. St. Louis
County Government has over three thousand employees in its many
departments. I supervised all litigation, which was primarily in state court
but included some federal court litigation. The federal court litigation
included civil rights litigation involving prisoners in the County Jail and
the police department. I attended and advised the County Council at
weekly meetings and drafted legislation. While County Counselor, 1
worked to establish the St. Louis County Municipal Court system with
courts in north, south and west St. Louis County, handling forty thousand
ordinance cases a year. My practice was primarily civil during this period
of time.

In January 2000, 1 was appointed a Circuit Judge and I have served as a
judge since that date.

ii. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.

As a prosecutor, I represented the State of Missouri in criminal
prosecutions.

As County Counselor, I represented all of St. Louis County Government’s
departments, agencies and commissions. I represented the County
Executive and the County Council. In addition, in some limited
circumstances, I represented county employees.

c. Describe the percentage of your practice that has been in litigation and
whether you appeared in court frequently, occasionally, or not at all. If the
frequency of your appearances in court varied, describe such variance,
providing dates.

As a prosecutor from 1 979 to 1991, my practice was exclusively litigation. I
had daily court appearances for dockets, motion hearings, and trials. As
County Counselor from 1991 to 2000, 1 spent approximately 30% of my time
supervising civil litigation. During this period of time, I appeared in court
infrequently.

i. Indicate the percentage of your practice in:

1 .

federal courts:

2.

state courts of record:

100%

3.

other courts:

4.

administrative agencies:

38

651

ii. Indicate the percentage of your practice in:

1 . civil proceedings: 40%

2. criminal proceedings: 60%

d. State the number of cases in courts of record, including cases before
administrative law judges, you tried to verdict, judgment or final decision
(rather than settled), indicating whether you were sole counsel, chief counsel,
or associate counsel.

I tried approximately 200 cases as sole counsel.

i. What percentage of these trials were:

1. jury: 25%

2. non-jury: 75%

e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable,
any oral argument transcripts before the Supreme Court in connection with
your practice.

I have not practiced before the Supreme Court of the United States.

17. Litigation : Describe the ten (10) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give a capsule summary of
the substance of each case. Identify the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case:

a. the date of representation;

b. the name of the court and the name of the judge or judges before whom the
case was litigated; and

c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.

1. State v. Wise, 879 S.W.2d 494 (Mo. 1994), St. Louis County Circuit
Court, Hon. Melvyn Weisman. I prosecuted the defendant for the
murder of a woman who lived in a condominium complex where he
worked as a maintenance man. The defendant admitted killing the
victim so that he could steal jewelry to buy drugs. After numerous
competency hearings, the defendant proceeded to trial, choosing to
represent himself with standby counsel. Standby counsel took over
representation of the defendant in the penalty phase. The defendant,

39

652

who was on parole for murder at the lime of this offense, was convicted
of murder first degree, two counts of armed criminal action, stealing,
and robbery first degree. He was sentenced to death and that sentence
was carried out after he exhausted all appeals.

Standby Counsel: B. Strand and M. McClain

Public Defenders Office
1000 West Nifong, Building 7, Suite
100

Columbia, Missouri 65203
(573) 882-9855

2. Slate v. Bullock, 826 S.W.2d 83 (Mo. App. W.D. 1992), Boone County
Circuit Court, Hon. Frank Conley. 1 handled the third trial of the
defendant involving the death of his wife. He was tried for murder first
degree. I was assigned to the case for the third trial on charges of
tampering with physical evidence and arson. The trial was held in
Boone County on a change of venue, and the defendant was found guilty
of the charges. The Court of Appeals reversed the tampering with
physical evidence conviction, holding that offense could not occur in the
absence of an official proceeding. The sentencing on the arson
conviction resulted in a further appellate opinion, at 838 S.W.2d 5 1 0
(Mo. App. W.D. 1993).

Opposing Counsel: Arthur Margulis

1 1 South Meramec
Clayton, Missouri 63 1 05
(314) 721-6677

3. State v. Jones, 705 S.W.2d 19 (Mo. 1986), Franklin County Circuit
Court, Hon. Lawrence Davis. I was appointed as Special Assistant
Attorney General to investigate and prosecute this murder that occurred
in Crawford County, Missouri. The case was transferred to Franklin
County on a change of venue due to pre-trial publicity. The defendant
was found guilty of murder first degree and sentenced to death. The
judgment was affirmed on appeal.

Opposing Counsel: Don Hager

Public Defender’s Office

1000 West Nifong, Building 7, Suite

100

Columbia, Missouri 65203
(573) 882-9855

4. Slate v. Burrow, 793 S.W.2d 509 (Mo. App. E.D. 1990), St. Louis
County Circuit Court, Hon. Arthur Litz. I prosecuted the defendant for

40

653

the murder of his former employer, who fired him for stealing. The
defendant chased the victim throughout his paint store, beating him to
death. A number of psychiatrists testified at trial, but the jury rejected
his psychiatric defense. The defendant was found guilty of murder first
degree, robbery first degree, and two counts of armed criminal action.

He was sentenced as a prior offender to life without parole. The
judgment was affirmed on appeal.

Opposing counsel: Scott Dixon

103 West Main
Belleville, Illinois
(618) 233-1103

5. State v. Trice, 747 S.W.2d 243 (Mo, App. W.D. 1988), Boone County
Circuit Court, Hon. Frank Conley. The defendant was a bus driver who
drove his bus loaded with children while under the influence of drugs
and alcohol. He started racing another car at a high rate of speed and
crashed the bus on the side of the highway. As a result of the crash, two
students where killed and one student seriously injured. The trial
occurred in Boone County on a change of venue due to pre-trial
publicity. The case attracted significant media attention because there
were no seatbelts on the school bus. In this case, however, the crash was
so severe the bus split in half and no precautions would have prevented
the deaths and injuries. The defendant was convicted of two counts of
involuntary manslaughter and one count of assault second degree. The
judgment was affirmed on appeal.

Opposing Counsel: Charles Shaw, now deceased

James Knappenberger
222 South Mcramec
Clayton, Missouri 63105
(314) 721-2274

6. State v. Goldsby, 845 S.W.2d 636 (Mo. App. E.D. 1992), St. Louis
County Circuit Court, Hon. William M. Corrigan. I prosecuted the
defendant for kidnapping a woman at knife-point from a shopping center
outside of Kansas City and driving her to St. Louis where he raped and
assaulted her. Two young men passing by assisted the victim in getting
away from the defendant. The victim and the young men identified the
defendant, who was arrested and then released on bond. After his
release, the defendant fled the United States and was later convicted of
drug possession in Malaysia. After several years, the defendant was
arrested upon attempting to enter the United States. After trial by jury,
the defendant was convicted of kidnapping, rape and assault. He was
sentenced to life in prison. The judgment was affirmed on appeal.

41

654

Opposing Counsel: Brad Kessler

1 520 Washington Avenue
St. Louis, Missouri 63103
(314)539-9595

7. Stale v. Franks, 702 S.W.2d 853 (Mo. App, E.D. 1985), St. Louis
County Circuit Court, Hon. James R. Hartenbach. I was assigned to
handle this prosecution after remand from a prior trial. The defendant
was an insurance agent who sold life insurance policies. After the initial
policies were issued, defendant submitted forged change-in-beneficiary
forms designating her friends as beneficiaries. Thereafter, the
defendant’s brother shot the policyholders and, in one case, killed the
person. In the defendant’s first trial, she was convicted of conspiracy to
commit murder. When that conviction was reversed and remanded, I
was assigned to the case. I located two new witnesses who could not be
found at the time of the first trial, which resulted in an additional charge
of murder second degree. At trial, the defendant was acquitted on the
charge of conspiracy to commit murder, but convicted of murder second
degree. The judgment was affirmed on appeal.

Opposing Counsel: Dan Finney

1735 South Big Bend Boulevard
St. Louis, Missouri 63117
(314) 646-0300

8. State v. Bullinglon, 680 S.W.2d 238 (Mo. App. W.D. 1984), Boone
County Circuit Court, Hon. James Ruddy, Special Judge. I prosecuted
the defendant for burglary first degree, armed criminal action and two
counts of flourishing a deadly weapon. The defendant broke into a
house and kidnapped a young girl at gun point after flourishing the gun
at the girl’s mother and brother. The case went to trial in Boone County
on a change of venue due to pre-trial publicity. The defendant was
found guilty on all charges and sentenced in the aggregate to 130 years
in prison. Hie judgment was affirmed on appeal.

Opposing Counsel: Mary Fox

Public Defender’s Office
Mel Carnahan Courthouse
1114 Market Street, Suite 602
St. Louis, Missouri 63101
(314) 340-7625

9. State v. Jones, 679 S.W.2d 927 (Mo. App. E.D. 1984), Circuit Court of
St. Louis County, Hon. Arthur Litz. I prosecuted the defendant for
kidnapping and armed criminal action. The defendant appeared from
behind a tree and abducted a female jogger at knife-point. He pulled the

42

655

woman into his parked car and started driving away. He attempted to tie
the victim’s hands and place tape over her eyes, but she was able to
break away from the defendant’s grasp and jump out of the car. Based
on circumstantial evidence and the victim’s identification, the defendant
was convicted at trial. The judgment was affirmed on appeal.

Opposing Counsel: Nick Zotos

4235 Lindell Boulevard
St. Louis, Missouri
(314)534-1797

10. State v. Jones, 693 S.W.2d 166 (Mo. App. E.D. 1985), St. Louis County
Circuit Court, Hon. Richard Enright. I prosecuted the same defendant in
a separate case for kidnapping, forcible rape, sodomy, and armed
criminal action. In this case, the defendant abducted a young girl who
was walking home from a friend’s house at knife-point. He tied the
victim’s hands, put tape over her eyes, and took her to a house where he
raped and sodomized her. At trial, I presented circumstantial evidence
along with the victim’s identification, and the jury convicted the
defendant on all counts. The judgment was affirmed on appeal.

Opposing Counsel: Mary Fox

Public Defender’s Office
Mel Carnahan Courthouse
1114 Market Street, Suite 602
SL Louis, Missouri 63101
(314)340-7625

18. Legal Activities : Describe the most significant legal activities you have pursued,

including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organization^) for whom you performed lobbying activities and describe
the lobbying activities you performed on behalf of such clicnt(s) or organizations(s).
(Note: As to any facts requested in this question, please omit any information protected
by the attorney-client privilege.)

While in the Prosecuting Attorney’s Office, I became acutely aware of the devastating
effects of domestic violence. Later as a St. Louis Counselor, I worked with the St. Louis
County Executive to establish the first residential shelter for battered women and
children in St. Louis County. With the assistance of a wealthy donor, a facility was
acquired, renovated and staffed with trained counselors. I worked on the formation of a
not-for-profit board, The Friends of the Weinman Shelter for Battered Women and
Children, and served on the board for several years. The Friends Board provided
oversight for the management of the shelter and helped to raise private funds for its
operation. The shelter has provided safe housing for hundreds of women and children.

43

656

In addition, as County Counselor, I served on the committee to establish a domestic
violence council for St. Louis County. In 1996 the St. Louis County Domestic and
Family Violence Council was created based on the legislation I prepared. I served on the
Council from 1996 to 2005, working with service providers and law enforcement
officials to develop policies and procedures to handle incidents of domestic violence.

Also, as County Counselor, I led the effort for the legislative approval and formation of
the St. Louis County Municipal Court. This court system allowed for the establishment
of three satellite courts in north, south and west St. Louis County to handle municipal
ordinance violations. By holding court at night at other locations, citizens were provided
better access to justice. In addition, 40,000 cases a year were removed from the State’s
overcrowded court system.

As Assistant Presiding Judge and Presiding Judge, I have provided guidance for the Court
through difficult budgetary times. Both the State and St. Louis County fund the
operations of the courts and both have been confronted with difficult financial conditions.
The State and the County have asked the courts to continue to provide the same level of
service with limited resources. The St. Louis County Courts have maximized their
resources by using reassigned judges from other circuits. We have also used retired
judges to more efficiently handle the case load of the State’s largest court system.

1 have not performed any lobbying activities on behalf of any clients or organizations;
however, I did appear before the Missouri State Legislature as St. Louis County
Counselor.

19. Teaching : What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.

I have not taught any courses during my legal career.

20. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest.

I receive payments from the St. Louis County Retirement System. I will receive
payments, upon retirement, from the Missouri State Employees’ Retirement System.

21. Outside Commitments During Court Service : Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.

44

657

I have no plans, commitments or agreements to pursue outside employment, with or
without compensation, if I am confirmed to be a United States District Judge.

22. Sources of Income : List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding $500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1 978, may be substituted here).

See attached Financial Disclosure Report.

23. Statement of Net Worth : Please complete the attached financial net worth statement in
detail (add schedules as called for).

See attached Net Worth Statement.

24. Potential Conflicts of Interest :

a. Identify the family members or other persons, parties, categories of litigation,
and financial arrangements that are likely to present potential conflicts-of-
interest when you first assume the position to which you have been
nominated. Explain how you would address any such conflict if it were to
arise.

If confirmed, I will continue to recuse on any matter involving my brother-in-
law’s firm, Capes, Sokol, Goodman and Sarachan.

b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.

I will follow the federal statutes on recusal and the Code of Conduct for United
States Judges. If necessary, I would seek advice from the Code of Conduct
Committee of the Judicial Conference. In addition, I will always review cases
and recuse on any matter where my impartiality might be reasonably
questioned.

25. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar
Association’s Code of Professional Responsibility calls for “every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving the disadvantaged.” Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.

My employment by public entities limited my ability to provide pro bono legal services.
However, I have served as an informal legal advisor to many of the boards and
commissions I have served on, including the Friends of the Weinman Shelter for Battered
Women and Children.

45

658

26. Selection Process :

a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination
and the interviews in which you participated). Is there a selection commission
in your jurisdiction to recommend candidates for nomination to the federal
courts? If so, please include that process in your description, as well as
whether the commission recommended your nomination. List the dates of all
interviews or communications you had with the White House staff or the
Justice Department regarding this nomination. Do not include any contacts
with Federal Bureau of Investigation personnel concerning your nomination.

No judicial selection commission was established in Missouri. Persons
interested in the appointment were directed to provide a resume to Senator
Claire McCaskili’s office, and I did so. On March 13, 2010, 1 was personally
interviewed by Senator McCaskill.

Since August 10, 2010, 1 have been in contact with pre-nomination officials at
the Department of Justice. I interviewed with attorneys from the White House
Counsel’s Office and the Department of Justice on September 21, 2010. On
December 1, 2010, the President submitted my nomination to the Senate.

b. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any currently pending or specific case, legal issue or
question in a manner that could reasonably be interpreted as seeking any
express or implied assurances concerning your position on such case, issue, or
question? If so, explain fully.

No.

46

659

AO 10

Rev. mm

FIN AN Cl KL D ISC LO SURF. REPORT
NOMIN ATION FILING

Report Required by the Ethics
in Government Act of 1973
(5U.S.C. opp.§§M-M)

I , Penan Reporting (Hw name, first, middle initial)

Ross, Jotm A.

t. Court or OrgnniUiioa

District Court for the Eastern District of Missouri

7. Date of Report

12/01/2010

4. Tills- (Anlcie til judges Indicate active or senior status;
magistrate judges indicate full- or pan-nrrvcj

District Judge

5a, Report Type {check appropriate type)

^ f] Nomination. Date 12AH/20I0

| | tniiiit Q Annual Q Final

6, Reporting Period

01/01/2009

to

i 1/29/2010

5b- j | Amended Report

7. Chamber* or OiTtee Address

Division 15, St. Louis County Courthouse

7900 C&rondcle!

Clayton, Mi ssouri 63 1 0t5

5. On rSe basis of (be ki Formation contained in this Report and any
modifications pertaining thereto, it it, In my opinion, in compliance
with applicable lam and regulations.

IMPORTANT NOTES: The instructions accompanjing this fern must br followed Complete alt pans,
checking the NONE box for each part where you have no reportable information. Sign on last page.

I. POSITIONS . (Reporting Individual only; Stt pp. 9-tJ of /Hire instruction^}
| ] NONE (No reportable positions.)

P OSITION

t. Advisory Board Member

Commercial Bank of Westport

l. President

Buz? Westfall Charitable Foundation

II. agreements • (/reporting intivtituel on//,- set pp. 1 4- 16 of fifing InnriKttnHxi
1 \ NONE (No reportable agreements.)

DATE PARTIES AND TERMS

1.2001

Missouri State Employees Retirement Fund, pension upon retirement

2. 1979

St. Louis County Employee Retirement Fund, no control

660

UI. NON-INVESTMENT INCOME . fKrparting indirlduit ond spouse: utpp. 17-14 of fling IrufrucHoniJ

A. Filer's Non- In vestment Income

[~~ J NONE (No reportable non-investment income.)

t. 20JD State of Missouri

2. 201 0 Commercial Ban*: of Westp on

J, 2009 S' 0 <e of M issouri

4.2009 Commercial Bant of Westpon

5. 2008 State of Missouri

tf. 2008 Commercial Bank of Westpon

B. Spouse's Non-In vestment Income - If you wtrt married during any portion of rite reporting year, complete this section,
t Dollar ouitiunl nut HJilW *ZC*pi for hinoraria.)

n NONE (No reportable nan-investment income.)

DATE SQ.URCEAND TYPE

1 . 2010 Self-employed sales consultant

Self-employed sales consultant

INCOME

(yours, not spouse's)

IV. REIMBURSEMENTS — transportation, /edging, food, entertainment.

(Includes those to spouse and dependent chddrrr; see pp. U-17 yffding inirrueriont.)

f 1 NONE (No reportable reimbursements.)

661

FINANCIAL DISCLOSURE REPORT

Ntmeof r.CJOB Rtporting

D»(tof*lepon

Page 3 of 6

Row, John A,

12/01/2010

V. GIFTS. (Include* those to spouse and dependent children; sttpp. 2t-5! cf filing Instruction!.)

| | NONE (No reportable gifts.)

£ PURGE DESCRIPTION V AL UE

Exempl

VI. LIABILITIES. (Includes those of spouse and dependent children: see pp, 33- JJ of filing Instruttions.)

[/] NONE (No reportable liabilities.)

CREDITOR DESCRIPTION

l.

662

FINANCIAL DISCLOSURE REPORT

Mum* of P:> -on RcporUng

Dale of Report

Page 4 of 6

Ross, John A.

IM) 1/20 10

VII. INVESTMENTS and TRUSTS — interne, value, transeclSoHS (Includes those of spouse end dependent children; Stepp 31-iO of filing InslfBrtions.)
| | NONE (No reportable income, assets, or transactions.)

A. ' 1 R. j

DeJeriplion of Atua Income during j

(including tmu atieU) 1 reporting period 1

j C

Gross value at end
of reporting period

Transactions during rep oning period

1 dfl CD j

Place *(X>’ after each **Kt Amount | Type (e.g., 1

«emp! from prior disclosure 1 * i div., rem, 1

j (A-M) J print.)

i

v.k* {

1 Code 2
fJ-P) |

*»

| Value |
Method
Code! |
! (O-W)

(J) ! (2> ! U) j

Type (e g.. Dale . V#1 d* 1

buy. sell, jmrrUtfd/yy J Code 2 ;

| fedemptinn) j [ (J-f} '

i (4) '
Gain ;
Code 1 j
(A-H) j

(5)

» Identity or

I buycsfrelfer

{if private
transaction)

I . Pitney Bowes common Mock

A

Dividend

J

T

■

2. Lee Enterprises common stock

None

S

T

■

3 . Commercial Bank of Westport, common

stock

None

J

T

4. Spine Partners IX.C.

C

Distribution

I

T

■

■

5. M&| Bank money market account

A

Interest

. M

T

6. PNC Bank cftccking/money market

..

A

Interns!

K

T

7. IRA #1

B

Ir.t./Div,

L

T

8, -Wcl Is Fargo money market see aunt

9- -Com erica Inc. common stock

10. JRA#2

A

Dividend

J

T

1 1 . -Van Kampen Govt. Securities Fund

12. J P M organ Smart Retire 2030 retirement
account

B

Dividend

K

T

™ .....

13. Missouri 2020 Fund deferred compensation
fund Templeton Dev

■

J

T

■

■

14.

15.

■

■

16.

17.

■

■

j I. Income Ow'd Cedes:

I (SecCshmu HI MdD4)
2. VahxiCoda
(Sec Column Ct sad Dl)

i

A =JlflQOortew
v -150,001 - J 1 M.OCO

H "V2J0D0I • SKBXHX1
M ‘'125,000,001 -UO.TOflOO
Q -Apjasisil

B ”11.1*1 -J2.JP0

e -jroc.ooi • s i.wo pea
R-SU.MlJSfl.IW)
O-MOOPOI -JliWjPM

R (Real EHJIC Only)

V”OH«r

C”)2J8t * tJPOO
01 -Jt.000.COl -SJ 000.000
l ~tiam • JidOemo
Ri-siPoo.oci-M.ow.oeo
N -Mwetl.aJja.flOC.OO0
S -AlKument
W~Ej limsmd

O -U.001 - I15.00O

112 -More iRmUMO.OQO

m -si oo.ooi - usaooo

P2-1SPMJWI - JJS.OOOjaM

J. Vsluc MQtad Codn
(SttCohvnCI)

T-C.jt. Mat lit

663

FINANCIAL DISCLOSURE REPORT

Name of Person Reporting . . !

Dsicof Report

Page 5 of 6

Rom, John A. j

12/01/2010

Vni. ADDITIONAL INFORMATION OR EXPLANATIONS. (Indicate part of Report.)

FINANCIAL DISCLOSURE REPORT

Nine of Penes Reporting .. ..

0*« oT Report

Page 6 of 6

Ross, John A.

12/01/2010

IX. CERTIFICATION.

] certify {hat »ll Information given above (Including Information pertaining <o my jpoase and minor or dependent children, if any) is
accurate, tme, and complete to the bat of my knowledge and belief, Bnd that any information not reported w*» withheld because It met applicable rtnlutory
pmiiloiu permitting uor»-diM Injure.

t farther certify that earned income from outside employment and honoraria and the acceptance of gilt* which have been reported are In
compliance wiU> the pravHkmr of 5 U-S.C. app. § 501 ct. teq.,5 U.S.C. g 7J53, and Judicial Conference regulation*.

NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE SUBJECT TO CIVIL
AND CRIMINAL SANCTIONS (S U.SC. app. § 104)

FILING INSTRUCTIONS

Mall signed original and 3 additional copies to:

Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301

One Columbus Circle, N.E.

Washington, D.C. 20544

664

FINANCIAL STATEMENT
NET WORTH

Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank
accounts, real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts,
mortgages, bans, and other financial obligations) of yourself, your spouse, and other immediate members of your
household.

665

FINANCIAL STATEMENT
NET WORTH SCHEDULES

Listed Securities

Pitney Bowes (PBI)

$ 4,939

Lee Enterprises (LEE)

1,525

Total Listed Securities

$6,464

Unlisted Securities

Commercial Bank of Westport

$ 375

Spine Partners LLC

15,000

Total Unlisted Securities

$ 15,375

Real Estate Owned

Personal residence

$ 492,000

Family residence (25% interest)

50,000

Total Real Estate Owned

$ 542,000

Retirement Accounts

JP Morgan Smart Retire 2030

$ 22,754

Missouri 2020 Fund

6,066

Wells Fargo Money Market Account

63,428

Comerica Inc. stock (CMA)

8,388

Van Kampen Govt. Securities Fund

6,305

Total Retirement Accounts

$106,941

666

61

667

(Circuit (frniTrt of ‘JEnuis (Ununtg

DIVISION 15

7900 CARON DELET AVENUE
CLAYTON, MISSOURI 63105

JOHN A, ROSS
CIRCUIT JUDGE
(314) StS-tSIS

January 5, 201 1

The Honorable Patrick J. Leahy
Chairman

Committee on the Judiciary
United States Senate
Washington, DC 20510

Dear Mr, Chairman:

I have reviewed the Senate Questionnaire I previously filed in connection with my
nomination on December 1, 2010, to be United States District Judge for the Eastern
District of Missouri. Incorporating the additional information below, I certify that the
information contained in that document is. to the best of my knowledge, true and
accurate.

• On December 16, 201 0, 1 was a Speaker at the St. Louis County Bar
Association’s Annual State of the Bench and Bar Meeting. I have no notes,
transcript or recording. The address of the association is 7905 Forsyth, Clayton,
Missouri 63105

(Question 12d)

• I presided over one additional case that has gone to verdict, therefore the total
number of cases presided over that have gone to verdict or judgment is
approximately 327.

(Question 13a)

I also am forwarding an updated Net Worth Statement and Financial Disclosure
Report as requested in the Questionnaire, [ thank the Committee for its consideration of
my nomination.

cc; Senator Charles Grassiey
Ranking Member
Committee on the Judiciary
United States Senate
Washington, DC 20510

668

AGIO

»ev. mm

FINANCIAL DISCLOSURE REPORT
NOMINATION FILING

Report Required by the. Ethics
in Government Act of 1978
fSUSC.tpp.Sf IQtAll)

t. PtrtoB Reporting (Uii name, fin*, middle initial)

ROSS, John A.

1, Coart ar OrgaafuUen

District Court for the Eastern District of Missouri

J. Date of Report

01/05/201 !

■4. Tlile (Ankle It! judge! indicate acliwe or senior Status;
magistrate judges indicate fell- or part-time)

District Judge

5*. Report Type feheeV appropriate type)

j^r j Nomination. Date 01/03(20! 1

[ | Initial Annual Pieil

£. Reporting Period

01/01/2010

12/23/20)0

5b. Q~J Amended Report

7. Chamber! or Otflrc Addreai

Division 15. St. Louis County Courthouse

7900 Caromfelet

Clayton, Missouri 6M05

8. On tie bull af the feformidao contained in this Report and soy
mwDUeatimi pertaining thereto, ft It, In my opfoton, bi compliance
with applicable lean and regulation!.

IMPORTANT NOTES: The insrruclfoni accompanying this form must befotbtxi Complete all parts,
cheeking the NONE box for each pari where you have no reportable Information Sign on tags page.

I. POSITIONS. (fttporrln/; Individual oittf; tti pp. 5*-?J of filing inUracltoni.)

[ | NONE (No reportable positions.)

POSITION

1. Advisory Board Member

Commercial Bank of Westport

2. President

Buzz Westfall Charitable Foundation

II. AGREEMENTS . fit /porting truth! dual only; tee pp. tt-ti offiting Intnutlioiu.)
1 ~ [ NONE (No reportable agreements.)

1.2001

Missouri Stale Employees Retirement Fund, pension upon retirement

2- 1979 St. Louis County Employee Retirement Fund, no control

3.

669

1. Exempt

670

FINANCIAL DISCLOSURE REPORT

Nun* of Pcnon Reporting

Gift of Rtpan f

Page 3 of 6

Rojj, John A.

0I/05/20H j

V. GIFTS. tlnclades then to spouse and dependent children; let pp. IAS! of filing imfraethm)

| | NONE (No reportable gifts.)

SOURC E DESCRIPTION VALUE

I. Exempt

VI. LIABILITIES » /Includes those of spouse end dependent children; see pp. l}-)3 of flllnp hairuetiont.)
[/ ] NONE (No reportable liabilities.)

671

FINANCIAL DISCLOSURE REPORT

Page 4 Of 6

VII. INVESTMENTS find TRUSTS —Incemt. valve, trunsBc'icHJ flne/atUr >hatt ofspeute anj dependent children; ttt pp. 3d-4Q of filing hutrutOoru.)
1 j NONE (No reportable income, assets, or transactions.)

Detcripiicn of Asks
( including tniit swets)

Phce “(X)* *flcr each asset

acmpt from prior disdoiurc

1 . Pitney B owes common stock

2. Lee Enterprises common stock

3. Commercial Bsnk of Westport, common
stock

4. Spine Parterre I..L.C.

M Sl ? Bank money market account

6. PNC Bank checking/money market

IRAtfl

j 8. -Wells Fargo money market account

-Comerica Inc. common stock

10. IIU #2

11. -Van Kampcn Omd. Securities Fund

12. J P Morgan Smart Retire 2030 retirement
account

13. Missouri 2020 Fund deferred compensation
I fond Templeton Dev

B.

income during
reporting period

c.

Grass value at end
of reporting period

<»> {2}

<0 (2)

Amount Typefe-g..

Vitee j Vitue •

i fA-H) or ini)

{/-P> 1 Code) j

!

J IO-W) j

Trinudioru during reporting period

0)

T»

| 0>

1 H) ]

Type (e.g.

< Dace

Value

2»*y. tell.

'mm/ddfyy

| Code 2

Code 1

redemption)

|

<M>)

fA-H)

f . Income Cn In CoJu:

(See CohaTmiB) «ndIM)
7. Value Coda
{be Celumai Cl ml Dl)

J. Vtlue Method Codes
(SreCalwmCtt

A-Ji.oonwtcu H-jijoi-iJ.saa cMJjot-tJ.ooo o-ii.ooi-ijs.om e-sij.ooi.isoooo

F-lSOpO! -1100,000 G *1(00,001 ■ JI.QOOJXO 111 -J 1.000.001 - 15.000.000 111 -M«t thw IJXtDjXO

1-SILOeOorlUl K-lil.COI -SJOJXM L*S5a.00t- HOCOOO M-tlOO.Mt-lI5Q.000

N -1JSOJJOI - S 100.000 O-SSOCOQI- S1.OM.000 PI •K.OOO.OOI • IIPODOIO PI >11000.00! - 121.000.000

PJ -IJJ.OCO.OQr . UO.OOO.OOO PH -Mac Olio ISO, 000,000

O-Appriiul R -Cod (Rid &l»lc Only) S-AueumcM T-Csih W.rlO

LI -Boole Value V-OiS*r W-btwMtd

672

FINANCIAL DISCLOSURE REPORT

Nam* of Pcraaa RepcrtUe

D«e of Report

Page 5 of 6

Ron, John A,

OJ/OS/JOt l

VIII. ADDITIONAL INFORMATION OR EXPLANATIONS. (tmfkatr part of ft apart.)

FINANCIAL DISCLOSURE REPORT

Mam* of Penan Reporting

Daft af Report

Page 6 of 6

Ros^JohnA.

0WJ5/20U

IX. CERTIFICATION.

I certify that all Information given Bbove (including information pertaining io my ipouje and minor or dependent children, if any) is
act lira If, true, and complete to the best of my knowledge and belief, and that any information not reported was withheld because It met applicable statutory
provklosu permitting non-dlidinure.

I further certify that earned income from outside employment and honoraria and the acceptance of gffu which have been reported are In
compliant* with the provision* of 5 U.S-C. app. § SOI ct. seq.,5 U-S-C. § 7353, and Judicial Conference regulations.

NOTE; ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT M AY BE SUBJECT TO CIVIL
AND CRIMINAL SANCTIONS (5 US.C app. § 104)

FILING INSTRUCTIONS

Mail signed original and 3 additional copies to:

Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301

One Columbus Circle, N.E.

Washington, D.C. 20544

673

FINANCIAL STATEMENT
NET WORTH

Provide a complete, cun-ent financial net worth statement which itemizes in detail all assets (including bank
accounts, real estate, securities, mists, investments, and other financial holdings) all liabilities (including debts,
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate members of your
household.

674

FINANCIAL STATEMENT
NET WORTH SCHEDULES

Listed Securities

Pitney Bowes (PBI)

$ 4,953

Lee Enterprises (LEE)

1,765

Total Listed Securities

$6,718

Unlisted Securities

Commercial Bank of Westport

$ 375

Spine Partners LLC

15,000

Total Real Estate Owned

$ 15,375

Real Estate Owned

Personal residence

$ 492,000

Family residence (25% interest)

50,000

Total Real Estate Owned

$

542,000

Retirement Accounts

JP Morgan Smart Retire 2030

$

22,163

Missouri 2020 Fund

S

4.760

$

26,923

IRA Accounts

Wells Fargo Money Market Account

$

63,456

Comerica Inc. shares

$

8,824

Van Kampen Govt. Securities Fund

__L

5.969

S

78,254

College Savings Account

American Century International Growth Portfolio

$

3,722

675

Senator Coons. Thank you. Thank you to all five of our nomi-
nees for sharing your families and friends with us and for begin-
ning this process.

I would like to now move to the questions, if we can. We are
going to do 10-minute rounds.

I would like to begin by just asking, if I could, each of you in
turn to briefly describe your judicial philosophy, how you see the
challenge of serving as a Federal district court judge.

Ms. Torresen.

And we will go in the same order in which you introduced your-
selves, if you would.

Ms. Torresen. Thank you for the question, Senator. I would say
that my philosophy is really about what I am going to do, if I am
lucky enough to be confirmed, and in any case I would approach
the courtroom with an open mind. I would listen carefully to the
arguments presented by both sides. I would ascertain the facts, and
then I would start to study the law in that area. I would apply ex-
isting precedents from the Supreme Court, and the First Circuit in
my instance. And I would try to resolve the case, the controversy
before me as narrowly as possible. And I think that sums up what
I think the judge’s role is and in some ways is really my philosophy
as well.

Senator Coons. Thank you, Ms. Torresen.

Ms. Brown.

Ms. Jolivette Brown. Thank you for the question, Senator.
Should I be confirmed, my judicial philosophy would embody three
basic principles: stability, predictability, and civility. In that re-
gard, I would treat every party and litigant and participant appear-
ing before me with fairness and neutrality. I would only decide
issues that are properly before me. I would have a commitment to
the rule of law and precedent. And, finally, my judicial philosophy
would be to preside on every matter with a calm, even tempera-
ment. So in that regard, Senator, that would constitute my judicial
philosophy, should I be confirmed.

Senator COONS. Thank you, Ms. Brown.

Mr. Kuntz.

Mr. Kuntz. Thank you very much for the question, Senator. I
agree with what has been said, and I would say that careful listen-
ing, patience, and humility in terms of the proper role of the judge
are the things that I would bring to the table, if am fortunate
enough to be confirmed. I think those are elements that are crucial.

Senator Coons. Thank you, Doctor.

Judge Cain.

Judge Cain. Thank you for the question, Senator. I agree with
what my fellow panel members have stated, and the approach I
have tried to take for the last 11 years is to be a neutral and unbi-
ased arbiter of the cases that come before me, and to take the facts
of each case and apply the law to the facts without passion or prej-
udice, and try to ensure that the trial or hearing is conducted in
a way that even though a party may not get the result they want,
they leave the courtroom feeling that they have had a full and fair
opportunity to be heard.

Thank you.

Senator COONS. Thank you, Judge.

676

Judge Ross.

Judge Ross. Thank you, Senator. Again, I fully believe that ev-
eryone is entitled to a full and fair day in court, and every litigant
who conies into my courtroom is entitled to be treated with respect
and dignity. And I try and listen very carefully and listen to all
sides in any case and apply the law to the facts, and that would
be my intent.

Senator COONS. Thank you.

If I could, in the next round I would be interested in hearing
each of you speak more specifically to your view of precedent, how
you would approach the use of precedent, and also what is the role
of courts in interpreting laws written and passed by elected legisla-
tive bodies as well. So the combination of legal precedent and what
standards or practices or approach or philosophy you would apply
to the interpretation of laws enacted by legislative bodies.

Ms. Torresen.

Ms. Torresen. Thank you for the question. As far as precedent
goes, I would consider myself strictly bound by the Supreme Court
precedent and by precedents from the First Circuit Court of Ap-
peals. Their word is the final say, and I would apply what the law
is as they have interpreted it.

As far as statutes go, I think any judge starts with the plain
meaning of the statute, and that is what I would do as well. You
decide whether it is clear on the face of the statute what the stat-
ute says, and if there is ambiguity, then you look to the purpose
of the statute, what was the Congressional intent behind the stat-
ute. And, generally, you can make out what the statute means and
what you should do by those two tools.

Senator Coons. Thank you, Ms. Torresen.

Ms. Brown.

Ms. Jolivette Brown. Thank you for that question, Senator. I
understand that if I am confirmed as a Federal district court judge,
I am bound by precedent. So I would be following the precedents
set by the United States Supreme Court and the Fifth Circuit
Court of Appeal.

Secondarily, when it comes to the legal interpretation of laws en-
acted, I agree with Ms. Torresen that you must first begin with the
text of that law and look to the plain and obvious meaning. If you
cannot come to a conclusion at that point, then you should look to
Supreme Court and appellate court precedent, again, for either au-
thority on point or analogous points. And then secondarily, by anal-
ogy, you can look to other State court precedents; and, finally, to
the legislative purpose or intent if that is available.

Senator Coons. Thank you, Ms. Brown.

Mr. Kuntz.

Mr. Kuntz. I agree that legal precedent, Mr. Chairman, is key
and is binding, and I would look to Supreme Court precedent in the
first instance and to the precedent of the Second Circuit beyond
that.

In terms of statutes enacted by the Congress, I would certainly
follow the plain language of those statutes. That is what you look
to to determine what the legislator meant and what the legislature
has meant, and that is where I would focus my attention.

Senator Coons. Thank you, Doctor.

677

Judge Cain.

Judge Cain. Thank you for the question, Senator. If I am fortu-
nate enough to be confirmed, I would review any applicable Federal
statutes and construe them, the words of those statutes, in accord-
ance with their plain and ordinary meaning. And I would also look
to precedent as established by the U.S. Supreme Court and the
Fourth Circuit Court of Appeals and follow that precedent. Predict-
ability is very important in our system, and I would continue to do
that as I have done on the State court level.

Thank you.

Senator Coons. I will confess to being partial to the Third Cir-
cuit myself.

[Laughter.]

Judge Cain. Yes, sir.

Senator Coons. Judge Ross.

Judge Ross. And I would agree with my colleagues. Initially, you
would look at the plain language of the statute and the legislation
and then be bound by the precedent, in my situation the Eighth
Circuit and the United States Supreme Court, and I would follow
the precedent in all circumstances.

Senator COONS. Thank you.

For the first three, you have spent much of your legal careers as
advocates in different roles, whether in practice in law firms or in
various roles in Government roles. But more often than not, you
have appeared in courtrooms as advocates, and I would be inter-
ested in hearing from each of you how you view the role of a dis-
trict court judge as distinct from that of an advocate and how you
will make the transition from long and successful careers as advo-
cates to being more judicial in your temperament.

Ms. Torresen.

Ms. Torresen. Thank you for the question. I realize that as an
advocate you are trying to put forth your party’s case in the best
light for your party, making every reasonable argument that you
can. That is sort of putting a spin on the ball, so to speak. And I
certainly have done that in my career.

I will say that as a Federal prosecutor I see my role not quite
to win the conviction, so to speak, but I see my role to see that jus-
tice is done. And as part of that, I think I take an objective view
of things, and I try to consider all sides, particularly in the stage
where we decide whether to charge a case or who to charge and
what to charge. So I do think I have some sort of more middle-of-
the-road experience with that, and I think that will be helpful in
making the transition to becoming a District Judge if I get con-
firmed.

I do see the need for a District Judge to be completely open-
minded and not biased in any way, and I understand that, and I
believe I could do that with ease, actually, and I hope to get the
opportunity to do so.

Thank you.

Senator Coons. Thank you, Ms. Torresen.

Ms. Brown.

Ms. J olivette Brown. Thank you for the question, Senator. In
making the transition, I think I would look to the totality of my
professional experiences. I have spent a large amount of my career

678

as an advocate and as a litigator, but I have also spent some time
in the role as counselor and adviser in many transactional matters.
And in my current position as city attorney, I advise various polit-
ical and elected officials and boards and commissions.

I have also been a mediator, and a mediator is a trained neutral.
I have been a law professor. As a city authority, I am lead pros-
ecutor on municipal and traffic violations.

So if you look at the totality of my professional experience, I
think you can find what I see as guiding principles of neutrality
and fairness. I have a strong commitment to the rule of law and
applying precedent because I have stood in many different roles
and fully appreciate that. So I think that I could make a smooth
transition to the judiciary with those guiding principles.

Senator COONS. Thank you, Ms. Brown.

Dr. Kuntz, if you might answer, and then we will turn to Senator
Grassley.

Mr. Kuntz. Thank you, Mr. Chairman. In my experience as a 33-
year practitioner in the commercial world, I represented both plain-
tiffs and defendants, and so I was on both sides of the aisle in that
regard.

I think the most relevant experience is my 23 years that you
hear Senator Schumer advert to on the Civilian Complaint Review
Board, which is a quasi-judicial post where we would take com-
plaints and have answers from police officers and make rec-
ommendations to the police commissioner. We did not have the
power to impose discipline, but we would make recommendations.
And there we were always fair and impartial and would listen to
both sides. It was, as he alluded to, very demanding work, but it
is something where I always strove to be worthy of serving the peo-
ple of New York in that capacity. So I have had that experience
and think that it is relevant to the kind of work that I would be
doing if I am fortunate enough to be confirmed as a district court
judge.

Senator COONS. Thank you, Dr. Kuntz.

Senator Grassley.

Senator Grassley. Yes, welcome again. I will have different
questions for each one of you. I will have some that are a little
more specific, but some along the same lines as the Chairman has
just asked. So I do not want you to think I did not hear your an-
swers there, but there is an old saying around the Senate: “Every-
thing that has been on this subject has been said, but I have not
said it and, by golly, I am going to say it.”

[Laughter.]

Senator Grassley. So I am going to start, and I am going to just
concentrate on one person for two or three questions. Some of you
will only have one question.

For you, Ms. Brown, I understand an area of interest for you has
been environmental law. In addition to representing national envi-
ronmental groups, you have taught courses on the subject, includ-
ing a course on environmental justice. As a judge, you, of course,
will be asked to put aside your personal views and make decisions
based on the law and facts before you.

Do you believe you will have any difficulty making the transi-
tion?

679

Ms. Jolivette Brown. Absolutely not, Senator.

Senator Grassley. Okay. In 2009, you wrote an article on envi-
ronmental justice and how its supporters can sometimes be in con-
flict with traditional environmental groups. How would you define
and identify environmental justice? And, second, what role do you
believe the court should play in addressing concerns about environ-
mental justice?

Ms. JolivetteBrown. Thank you for that question, Senator.
Should I be confirmed and should I get an issue of environmental
justice before me, rest assured that I would rely on the guiding
precedents of the Supreme Court and the Fifth Circuit Court of Ap-
peal and apply — and carefully listen to the facts and apply the law
to the facts. And nothing else would come into my consideration.

Senator Grassley. Okay. I believe you answered the second part
of it. Could you define and identify the term “environmental jus-
tice” ?

Ms. Jolivette Brown. Senator, that is a term that different
groups have a different definition to, and it is one that is left to
judicial interpretation as well. So I would not feel comfortable giv-
ing you a definition that would be construed as my personal opin-
ion on the topic.

Senator Grassley. Well, I can understand why you would not
want to say something now that would impact whether you were
impartial in a court. But surely if you wrote on this subject, you
have some idea of what environmental justice is. So just from the
standpoint of your writing, how did you define it?

Ms. JolivetteBrown. Well, Senator, in that particular article, I
think what I was relaying was the differences in the interpretation
of environmental justice by civil rights organizations and how tra-
ditional environmental organizations sometimes interpret the envi-
ronment, and that civil rights organizations tend to want to include
the urban environment, and traditional environmental groups look
to the traditional air, water, and soil as the environment.

Senator Grassley. Okay. Thank you. This is the last question
for you. Do you believe that economic considerations such as job op-
portunities for residents should be taken into account in litigation
that seeks to prevent an undesirable industry from being located
in a poor community?

Ms. Jolivette Brown. Senator, if I were fortunate enough to be
confirmed and that issue were presented before me, I would only
look to the prevailing precedents on that topic from the Supreme
Court and the Fifth Circuit Court of Appeal. Any personal opinion
I would have, I would check at the front door of the courthouse.

Senator Grassley. You know what? I said that was the last
question, but I have one other one.

[Laughter.]

Senator Grassley. In July 2002, you participated in an environ-
mental racism panel stating environmental racism is “just another
symptom of general racism. We are not going to get environmental
justice in this country until we get full social and economic justice.”

I do not want you to apply that to any case or worry about any-
thing you say applying to a case. I just want to know what you
meant by that statement.

680

Ms. Jolivette Brown. If that is a statement that was reported
somewhere and a statement I did not necessarily write myself, I
can try to interpret that from that, and I think from that it is that
the injustices people recognize in the environmental environment
are very similar to some of the overall societal ills that we face in
this country.

Senator Grassley. Okay. I have a couple questions for you, Ms.
Torresen. You have been very involved in the Mabel Wadsworth
Women’s Health Center. In fact, you served on that organization’s
board from 2006 to 2009. The Mabel Wadsworth Women’s Health
Center is one of the only clinics providing abortion-related services
in Bangor. According to their website, the center is also very in-
volved in advocacy of abortion rights. In 2009, the center held a
vigil for Dr. George Tiller. Dr. Tiller was a medical doctor in Wich-
ita, Kansas. At the time of his murder, he was one of three doctors
in the Nation that would provide late-term, post-21-week abortions
to women. The center described Tiller as “inspirational,” and “hero
and a leader.” The quote is “inspirational,” and the quote is also
“hero and leader.”

While murder is categorically wrong, calling a late-term abortion
doctor a “hero” suggests the center holds extreme views on women’s
rights to obtain an abortion.

Do you think Dr. Tiller is inspirational, a hero, and a leader?

Ms. Torresen. Thank you for the question, Senator Grassley. I
would like to say that the Mabel Wadsworth Women’s Health Cen-
ter is a place where women can receive health care services on a
broad spectrum, and it covers women from puberty through post-
menopausal years.

I was affiliated as a director of the board for 3 years of that 2006
to 2009, as you said, and I am not familiar with the particular
newsletter or whatever you are citing there. I was not aware of it.
I am pretty busy and have not read every one of those. But I be-
lieve that the center’s views are not squarely aligned with mine. I
do not have an opinion as to whether Dr. Tiller is an inspiration
or a hero. I have not really studied it, and I really know about him
tangentially through the news media but not more than that.

I do not believe that — I know that the Mabel Wadsworth Center
does not provide abortions in late terms, and I would say that any
opinions that I have on that topic I would leave outside the court-
room, and I would apply whatever the existing precedents are for
both the Supreme Court and the First Circuit.

Senator Grassley. On another point, did you have any concerns
about your role with the center in your position as Assistant U.S.
Attorney?

Ms. Torresen. Before I joined the board, I spoke with our office’s
ethics adviser and had that cleared so that I could be sure that I
was not in violation by doing that outside community service?

Senator Grassley. I have another question along that line that
I am going to ask you to answer in writing.

[The information referred to appears as a submission for the
record.]

Senator Grassley. In a letter to the editor of the Bangor Daily
News, you strongly criticized the local YWCA for choosing not to
accept a $25,000 gift for cancer education of lesbian women. The

681

YWCA said that it could not accept money advocating rights or po-
sitions of only a particular group. You wrote, “It is clear that
homophobia is behind the YWCA’s decision to reject the money.
The YWCA’s implicit message is that it does not care if lesbian
women die of breast cancer. Pretty hard to take from a group
whose mission is to empower all women.”

Is this an accurate account of your letter to the editor?

Ms. Torresen. I believe that is an accurate account of my letter
to the editor.

Senator Grassley. Do you believe that the YWCA does not care
if lesbian women die of breast cancer?

Ms. Torresen. That was a bit hyperbolic, and I realize now

Senator Grassley. That is enough.

Ms. Torresen. Okay.

Senator Grassley. Do your comments illustrate an appropriate
temperament for a Federal judge? I think that is an appropriate
question.

Ms. Torresen. That is an appropriate question. I thank you for
it, and I thank you for the opportunity to address it.

I wrote that I think 16 years ago, and I believe I have matured
since then. I certainly have learned the lesson that nothing is ever
lost by courtesy. I have been in the trenches in the Federal court-
room, and I know full well the pressure that the litigants are
under, and I would treat all litigants in the courtroom, if I were
lucky enough to be confirmed, with respect.

Senator Grassley. Okay. I am going to go out here and have a
little meeting, and then I will be back at the end of your 10 min-
utes. Is that OK?

Senator Coons. I may not go 10 minutes.

Senator Grassley. Okay. I will be available, so just call me in
whenever you are ready.

Senator Coons. Certainly, Senator. Thank you, Senator Grass-
ley.

I did not want to neglect the two judges on our panel today. Hav-
ing previously asked questions of the other three nominees about
their experience as advocates and how they would transition from
their role as an advocate to a Federal judge, I just wanted to ask
both of you what lessons you have learned in your experiences in
your current judicial roles and how you would apply them to the
distinguishable role of a Federal district court judge.

Judge Cain.

Judge Cain. Thank you for the question, Senator Coons. Over the
last 11-plus years, I have had the good fortune to hold court in 17
counties throughout the State of South Carolina. I have had folks
come before me of modest means, and I have had folks come before
me in court who have great wealth. And I think everyone needs to
be fed out of the same spoon, regardless of their station in life, and
I have tried to approach my job in that fashion.

Of course, at the State court level, we operate under the South
Carolina Rules of Civil Procedure, which are modeled under the —
by the Federal rules and the Rules of Evidence, which are modeled
after the Federal Rules, and I would continue, if I am fortunate
enough to be confirmed, to try to make sure that everyone who
comes into court, regardless of their station in life, receives a full

682

and fair opportunity to present their case and to feel comfortable
that they have had a judge who has conducted their hearing in a
fair and impartial manner. And I would hope to be able to bring
that same philosophy to the Federal bench.

Senator COONS. Thank you, Your Honor.

Judge Ross.

Judge Ross. Thank you, Senator. If I am fortunate enough to be
confirmed, I think my broad range of experience in the past will
benefit me in making this transition. I started out in the pros-
ecuting attorney’s office handling all criminal cases, and then spent
9 years as the county attorney in St. Louis County overseeing all
of the civil litigation for county government. Some of that litigation
was Federal litigation. And in my 11 years as a circuit judge in the
busiest circuit in the State of Missouri, I have seen a wide variety
of cases, and I think all of that experience will help me make the
transition again, if I am fortunate enough to be confirmed. And I
think, again, that it will be a transition, and I understand that I
will have things to learn, but I think that all of those experiences
will assist me in making that transition.

Senator COONS. Thank you, Judge.

I have just one last question for the whole panel. I would be in-
terested in your views on, as a Federal judge, what role you have
in ensuring fair and equal access to our courts, to our judicial sys-
tem, to appropriate treatment. You have all made some reference
to it in passing, but I would just be interested in your view on how
you would view your role in ensuring equal and fair access to our
judicial system.

Ms. Torresen.

Ms. Torresen. I think I need a little clarification on the ques-
tion. What do you mean by “fair and equal access to the judicial
system”?

Senator Coons. Well, you make rulings as a district court judge
that can have some impact on whether or not litigants appearing
before you really have the opportunity to be heard, and I think in
voir dire you also have a role in making sure that they are being
reviewed, judged as it were, by a jury of their peers. Those are just
two suggestions. You also ultimately set some of the rules and have
input into the fees that are paid and the process by which a case
gets before you as a district court judge. I am just suggesting a cou-
ple of the vectors that are of some concern to me.

All of you have had significant lengthy exposure to the judicial
process in your respective States. The Federal courts sit in a sort
of particular place in that, but cases are fed up into district courts
by a variety of means, and there have been some questions in our
history as to whether or not all cases arrive with the same stand-
ing in front of Federal courts.

So I was just interested in your particular views based on your
own particular experiences about how we ensure equal access to
justice for all Americans.

Ms. Torresen. Thank you for the question and thank you for the
clarification. I think the District of Maine may be somewhat unique
in this regard. For my fellow panel members, it may be slightly dif-
ferent. But in Maine, I do not see an issue with people having fair

683

and equal access to the Federal courts, and I think everybody that
conies to the Federal court is treated fairly and equally.

There are instances, I am sure, where if money is an issue, there
are court-appointed lawyers that are available that the courts can
provide in the criminal context, and that is done routinely. Also, for
waiving certain fees like special assessments, those are often
waived in the case of someone who has the inability to pay. So I
do not see that as a particular problem in the District of Maine.

Also, Maine is a State which I think the recent census data is
something like 98 percent white, and that is, you know — when we
empanel a jury, almost all of the people in the panel are white.
And that is an issue, but we do not — you know, that is just the de-
mographics of the State of Maine.

So I really do not see that we have an issue of an unfair or a
situation where someone is not getting access to judgment in the
Federal court.

Senator COONS. Thank you, Ms. Torresen.

Ms. Brown.

Ms. Jolivette Brown. Thank you for the question. There are a
number of ways I see that we can address the issue of fair and
equal access to justice. As you know, I have spent a lot of time as
a mediator. Mediation is a part of the Federal practice now. I think
mediation is a cost-efficient and effective way to move litigants
through the system in a way that is less costly to them.

Secondarily, for those who choose to continue on, I think early
status conferences and opportunities to bring the parties together
again moves those matters along. And I think all of those things
add to the overall access and fairness and justice to all. And just
the simple fact that parties should feel confident when they appear
before any court that only the issues properly presented before
them will be heard, they should feel confident that they are being
treated fairly despite their position or walk in life.

And so I think all of those three things take into account those
ways that we can play a role in fairness and access to justice for
all.

Senator COONS. Thank you, Ms. Brown.

Mister — Dr. Kuntz.

Mr. Kuntz. Please, “Bill” is fine, Mr. Chairman. Thank you.

In Brooklyn, we do have some of these issues in the Eastern Dis-
trict of New York, and there are a number of things that I have
been involved with, and others have as well. The expansion of CJA
panels, Criminal Justice Act panels, is important. The involvement
in bar association activities is also important, such as Federal Bar
Council. And we have a very fine group of magistrate judges who
have been very active in terms of helping the district court judges
to provide access to the courts for more and more people. I think
this is an area that is of immense importance, and particularly in
the habeas area as well.

So I have been involved for 33 years as a litigator through bar
association activities and, if I am fortunate enough to be confirmed,
would certainly continue those efforts to enhance accessibility. And
I thank you for the question, Mr. Chairman.

Senator COONS. Thank you, Dr. Kuntz.

Judge Cain.

684

Judge Cain. Thank you for the question, Senator.

Everyone should have access to justice and access to the courts
regardless of their station in life. And just to follow up on my re-
sponse to an earlier question, I have had folks in my courtroom of
modest means and great means, and the courtroom is a place
where everyone should be treated the same and treated fairly, re-
gardless of their station in life.

On the State level in which I work, our State Supreme Court has
done a good job of ensuring access to the courts by all persons and
has set rules and procedures by which filing fees can be waived
when appropriate, and I follow those guidelines and procedures.
And when a party applies to file an action or a motion and be ex-
empted from the requirement of a filing fee, if it fits within the pa-
rameters established by my State Supreme Court, I freely waive
that.

Thank you.

Senator COONS. Thank you, Your Honor.

Judge Ross.

Judge Ross. I also think it is very important to provide access
to the courts, and I think it is important to be sensitive to the ris-
ing costs of litigation. And certainly at the State court level, we
have seen an increase in pro se litigants trying to file cases on
their own, and we have taken a number of steps in our court to
assist pro se litigants and indigent litigants to have access to the
courts. And I would continue that practice if I am fortunate enough
to be confirmed.

Senator COONS. Thank you, Your Honor.

My time has expired, and I will defer now to Senator Grassley.

Senator Grassley. Dr. Kuntz, I see you left a lot of money at
Harvard.

[Laughter.]

Senator Grassley. Are there any other degrees you can get from
Harvard?

Mr. Kuntz. My late father-in-law, Senator, wondered if I would
ever get a job and stop going to school.

[Laughter.]

Mr. Kuntz. I am pleased to report that

Senator Grassley. Do not interpret any of my questions as keep-
ing you from getting a job so your father-in-law is happy.

For you, sir, on the living constitutional theory, Judge Scalia said
this — and I am only using this as an offshoot. I am not asking you
what you think about what he said. “The risk of assessing evolving
standards is that it is all too easy to believe that evolution has cul-
minated in one’s own views.” So you can understand why the inde-
pendence of a Federal judge is very important.

Do you believe that judges should consider evolving standards
when interpreting the Constitution?

Mr. Kuntz. I believe they should not. I believe the Constitution
is written and it says what it means and it means what it says.
And when it is time to amend the Constitution, the people of this
Nation amend the Constitution, not the non-elected judges.

Senator Grassley. I think you also answered my second ques-
tion, but let me ask it anyway. Do you believe that it is ever appro-

685

priate for a Federal judge to incorporate his or her own views when
interpreting the Constitution?

Mr. Kuntz. Never.

Senator Grassley. If confirmed, what sources will you look to
when interpreting provisions of the Constitution?

Mr. Kuntz. You look to the words of the Constitution. I have
studied at the level of doctoral history constitutional history, and
you look to the words. The Founders battled over every clause, and
it is there for a reason, and that is what you look to.

Senator Grassley. Thank you.

Mr. Ross, Judge Ross, at the time you were a county counselor,
there was an incident where members of the county Private Indus-
try Council sent an anonymous fax to members of the council and
the local media criticizing the director of administration for actions
he had taken. One of the whistleblowers was forced to resign. Both
filed suit asserting their rights under the First and 14th Amend-
ments. You were quoted by the media stating your belief that nei-
ther had a cause of action. The district and appellate courts did not
agree with you, and the county subsequently passed whistleblower
legislation.

You may not know that I am very active in protecting whistle-
blowers, so you know the interest behind my question. So I want
to ask two questions that follow on that.

Well, the first question is divided into two parts. Why did you
think the council whistleblowers had no valid suit?

Judge Ross. Thank you, Senator, for the question. My initial re-
view of the lawsuits when they were filed was that they did not
state a cause of action. It was purely a legal analysis of the law-
suits as they were initially filed.

They were later amended. There were additional claims that
were raised. We did file a motion to dismiss that was denied, and
the lawsuits were subsequently settled.

But my initial comments were based solely upon an initial review
of the lawsuits as they were filed.

Senator Grassley. Okay. If confirmed as a Federal District
Judge, what will be your approach to whistleblower suits? Will
whistleblower plaintiffs be treated fairly in your courtroom?

Judge Ross. I know I have had a number of whistleblower law-
suits since I have been a judge, and I think I have followed the law
and would always follow the law as it applies to a whistleblower.
I think whistleblowers can play a very important role and do play
a very important role. So I would certainly follow the law as it ap-
plies to those kinds of cases.

Senator Grassley. My second question to you is similar to what
my colleague just asked in his first questions to all of you. You
have no experience in the Federal court. What experience do you
have that qualifies you for a Federal judgeship? How do you plan
to make the transition?

Judge Ross. Senator, I have had a broad range of experience. I
started out handling all criminal cases in the prosecuting attor-
ney’s office, and I did that for 11 years, became the chief trial attor-
ney, handled a broad range of criminal cases.

As county counselor, which I was for 9 years, I supervised all the
civil litigation for county government. Some of that litigation was,

686

in fact, Federal litigation. I made these transitions and then made
the transition to becoming a judge. I think all of those things would
assist me in making the transition if I am fortunate enough to be
confirmed.

Senator Grassley. Okay. And my last question, you do not have
to answer if you do not want to, but I want to give you a chance
to respond to an allegation. On December 6, 2010, Congressman
Clay wrote to President Obama and expressed his strong opposition
to your nomination based on how you had handled the case Kevin
Buchek v. Robert Edwards. Specifically, Congressman Clay urged
the President to withdraw your nomination “[biased on Judge Ross’
judicial activism, history of racial and gender discrimination
against black elected officials and employees of the fire district.” In
his letter to the President, Congressman Clay attached a letter
from a group of elected officials in Missouri opposing your nomina-
tion.

Judge Ross. Thank you, Senator. I appreciate the opportunity to
address that.

I think that the letter that was written to Congressman Clay by
the other officials contains significant inaccuracies. This case actu-
ally came to our court based on a citizens’ petition that was filed
by residents of a fire district in North St. Louis County. It was filed
after the Missouri Attorney General had filed a lawsuit against the
district alleging that they had violated the open meetings laws.
There was also a scathing audit issued by the Missouri State audi-
tor citing financial improprieties and a lack of financial controls by
the district.

The citizens group requested a temporary restraining order and
asked that a receivership be appointed to take over the running of
the district. The case went to another judge, and that judge grant-
ed the restraining order. It then went to a second judge, who de-
nied a motion to dissolve the restraining order.

When both of those judges were disqualified, the case then was
assigned to my division. I did have a hearing, and after a hearing
I determined that a preliminary injunction was appropriate. I de-
nied the request for a receivership which would take over the en-
tire operation of the district. I did appoint a special master. The
special master that I appointed was a retired Missouri court of ap-
peals judge who happens to be African American. For 14 months,
the special master acted, and I affirmed many of the special mas-
ter’s recommendations.

To give you an idea of what was happening in the district, they
were holding meetings in violation to open meetings laws, and at
one point one member of the district voted to pay the former fire
chief and an attorney over $700,000 in severance pay. The attor-
ney, who was going to get a portion of that money, was one of the
people who wrote the letter to Congressman Clay.

So I think that the letter contains significant inaccuracies, and
at the conclusion of the 14 months that the court was involved in
the district, all of the recommendations of the State auditor’s office
were implemented, and there were financial controls in place and
a financial budget where the district was not spending more money
than it was bringing in.

687

I would also point out that during the course of the court’s in-
volvement, another court removed the chairman of the board of the
fire district, and it then came to me to appoint the new chairman
of the fire standard, and I appointed an African-American male,
and in so doing I maintained an African-American majority on the
board.

So I believe that the letter contains some inaccuracies that were
conveyed to the Congressman.

Senator Grassley. Okay. Now, Mr. Cain, if I only ask you one
question, you are going to think I think you are less significant
than the other four.

Judge Cain. I will not be offended, Senator.

[Laughter.]

Senator Grassley. Along the lines of something that the Chair-
man asked you, you have little experience in Federal court. What
experience do you have that qualifies you for a Federal judgeship?
And how do you plan to make the transition?

Judge Cain. Thank you for the question, Senator. Again, as a
State court judge for over 11 years, I have used the South Carolina
Rules of Civil Procedure and the South Carolina Rules of Evidence
in conducting hearings and trials. Those rules are modeled after
the Federal rules.

In addition to that, I have heard many types of matters in family
court relating to marital estates that might involve such assets as
interest in limited liability companies, corporations of various
types.

I have also had criminal experience hearing juvenile cases with
folks charged with felonies and misdemeanors. And prior to my
service on the family court bench, I was in practice for about 14
years and have worked as a public defender and a prosecutor and
was county attorney for 7 years and represented clients before var-
ious Federal agencies, and clients in primarily State court but also
Federal court as well. So I believe I would be able to make the
transition successfully if I am fortunate enough to be confirmed.

Thank you.

Senator Grassley. Thanks to all of you, and thank you, Mr.
Chairman.

Senator Coons. Thank you very much, Senator Grassley. Do you
have any further questions?

Senator Grassley. No.

Senator Coons. I do not either, so we will hold the record of this
nomination hearing open for a week in the event that any members
of this Committee who were not able to join us today wish to sub-
mit additional questions to our five nominees.

I want to personally thank our five nominees for being here
today and congratulate them on their nominations. You are truly
qualified. You are dedicated public servants, and I am grateful for
your willingness to step up and continue your service to our Nation
through service on the Federal bench.

This Committee stands in recess.

[Whereupon, at 4 p.m., the Committee was adjourned.]

Questions and answers and submissions follow.]

688

QUESTIONS AND ANSWERS

Responses of Nannette Jolivette Brown

Nominee to be United States District Judge for the Eastern District of Louisiana
to the Written Questions of Senator Chuck Grassley

1. At your hearing I asked you what you meant when you said environmental racism is
“just another symptom [of general racism], ..we’re not going to get environmental
justice in this country until we get full social and economic justice.” Gyan, Joe Jr.,

“ Environmental Racism" Global, Experts Believe, The Advocate, July 31, 2002. At
your hearing, it was unclear whether or not you believed you made this statement.

a. At your hearing you declined to answer how you defined the term
‘environmental justice.’ You talked about how other organizations use the
term, but I still would like for you to provide your definition. Please
respond.

Response: When I have written about the term “environmental justice,” 1 have
referred to the concept as articulated in Executive Order 12898, dated February
1 1, 1994, entitled. Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations, executed by President William J.
Clinton. See, Diversity Refined: Access to Justice: The Many Faces of
Environmental Justice: Which One Speaks the Truth?, 56 La. B. J. 420, Apr./May
2009. The Order states in pertinent part, “To the greatest extent practicable and
permitted by law, and consistent with the principles set forth in the report on the
National Performance Review, each Federal agency shall make achieving
environmental justice part of its mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or environmental
effects of its programs, policies, and activities on minority populations and low-
income populations in the United States and its territories and possessions, the
District of Columbia, the Commonwealth of Puerto Rico, and the Commonwealth
of the Mariana Islands.”

If I am confirmed as a district court judge, I would faithfully follow the
precedence of the Supreme Court and the Court of Appeals for the Fifth Circuit
regarding matters involving environmental law.

b. Is the above quote correctly attributed to you? At your hearing you were
ambiguous about whether or not it was your statement. Please give me a
clear answer as to whether or not you made the statemet.

Response: I apologize if I was not clear; however, 1 do not recall if 1 made that
statement. 1 do not believe I attended the panel during the International
Association of Official Human Rights Agencies’ annual meeting that was the
subject of Mr. Gyan's article, and while I may have been interviewed as part of his
reporting, the term “environmental racism” is not one which I use or of which 1
have a clear understanding. Indeed, the phrase “environmental racism” itself is
not directly attributable to me, and neither was the phrase “of racism in general.”

689

However, 1 am aware that it is often used interchangeably with the term
“environmental justice,” and that may have been the reporter’s intent. As noted in
1(a), my understanding of “environmental justice” is as it is described in
Executive Order 12898, and addresses the “disproportionately high and adverse
human health or environmental effects of its programs, policies, and activities on
minority populations and low-income populations,” and which can also be
addressed through improving the social and economic conditions of these
populations.

c. Your answer to my question as to what was meant by the above statement
during the hearing was a bit unclear, if you made the statement, what did
you mean by it?

Response: Please see above.

d. Do you believe that “environmental racism” exists?

Response: Please see above.

e. If so, please explain fully what you mean by the term?

Response: Please see above.

2. At your hearing I asked the following question, which you declined to answer. I
am asking the question again, and would like you to respond in the context of
explaining your writings, not how you would rule as a judge, if confirmed.

a. Do you believe economic considerations, such as increased job opportunities
for residents, should be taken into account in litigation that seeks to prevent
an “undesirable” industry from being located in a poor community?

Response: No; not unless specifically directed to do so by statute or Supreme
Court or Appellate Court precedent.

3. Over the years, environmental groups have sought to use the courts as way to
impose regulations of greenhouse gases. For example, in Massachusetts v.
Environmental Protection Agency, several states challenged the Environmental
Protection Agency’s decision not to regulate greenhouse gases. Recently, the
Supreme Court heard oral arguments in American Electric Power Co. v.
Connecticut, in which several states and private parties seek emissions caps on
utilities for their alleged contribution to global climate change. These cases have
contributed to concerns that the Judiciary is overstepping its bounds by
intruding on the policy-making authority of the legislative and executive
branches.

a. Do you believe these concerns are valid? Why or why not?

690

Response: As a district court judge my beliefs would be irrelevant and
inapplicable. Should 1 be confirmed, I will apply the applicable precedent to the
facts before me and only consider the issues properly before me. Considering that
in general. Supreme Court precedents are binding on all lower federal courts and
Circuit Court precedents are binding on the district courts within the particular
circuit, ifl am confirmed, I am committed to following the precedents of higher
courts faithfully and giving them full force and effect, including those mentioned
above.

b. Do you agree that some issues, no matter how pressing or critical one may
view them to be, are outside the purview of the courts?

Response: Yes.

4. What is the most important attribute of a judge, and do you possess it?

Response: The most important attribute of a judge is integrity, in my opinion, because
integrity implies honesty, fairness, ethics and a commitment to adhere to the principles
they are sworn to uphold. 1 believe 1 possess these attributes.

5. Please explain your view of the appropriate temperament of a judge. What
elements of judicial temperament do you consider the most important, and do you
meet that standard?

Response: In general, 1 believe a judge should demonstrate calm, even temperament.
Temperament, as i apply it here, describes a manner of thinking, behaving and reacting.

A judge’s thinking should be clear, informed, objective and impartial. A judge should
behave in a way that is professional, respectful and he or she should treat all litigants and
participants, as well as his or her staff and court staff in general, with respect and dignity
and always be prepared, finally, a judge should preside in a manner that is calm,
measured and even tempered. I believe 1 meet this standard.

6. In general, Supreme Court precedents are binding on all lower federal courts and
Circuit Court precedents are binding on the district courts within the particular
circuit. Are you committed to following the precedents of higher courts faithfully
and giving them full force and effect, even if you personally disagree with such
precedents?

Response: Yes.

7. At times, judges are faced with cases of first impression. If there were no controlling
precedent that dispositively concluded an issue with which you were presented, to
what sources would you turn for persuasive authority? What principles will guide
you, or what methods will you employ, in deciding cases of first impression?

691

Response: In a case of first impression, where there is no controlling precedent that
dispositivcly concluded an issue with which I was presented, I would first examine the
facts of the case in accordance with the Constitution and any statute that could in any way
reflect on the issue of first impression. I would also look at prior rulings of the Supreme
Court and Appellate Courts to see if analogies could be made from those cases to the case
of first impression.

8. At your hearing, you were asked about the use of precedent and the role of courts in
interpreting laws. You mentioned factors you would use. Is it ever appropriate for
a judge to use foreign law in determining the meaning or application of U.S. law?

Response: No.

9. What would you do if you believed the Supreme Court or the Court of Appeals had
seriously erred in rendering a decision? Would you apply that decision or would
you use your own judgment of the merits, or your best judgment of the merits?

Response: I would apply the decision of the Supreme Court or the Court of Appeals and
not use my own judgment of the merits.

10. Under what circumstances do you believe it appropriate for a federal court to
declare a statute enacted by Congress unconstitutional?

Response: When Congress exceeds its authority, it is appropriate for federal courts to
strike down an act of Congress.

1 1. As you know, the federal courts are facing enormous pressures as their caseload
mounts. If confirmed, how do you intend to manage your caseload?

Response: If confirmed, I would manage my caseload by utilizing a scheduling order
system to keep all of the cases before me on track to be resolved in a timely manner. I
would also utilize the alternative resolution processes incorporated into the Eastern
District of Louisiana’s scheduling orders, such as mediation before trial and encourage
the parties to get together early in the litigation to mediate, resolve or eliminate issues
they can compromise on early.

12. Do you believe that judges have a role in controlling the pace and conduct of
litigation and, if confirmed, what specific steps would you take to control your
docket?

Response: Yes, I believe that judges have a role in controlling the pace and conduct of
litigation and, if confirmed, 1 would take the following steps to control my docket:

As mentioned above, 1 would utilize a scheduling order system to keep all of the cases
before me on track to be resolved in a timely manner; I would be prepared to rule, where
appropriate, on all matters when scheduled to do so, whether oral argument is granted or
not; I would adhere to a daily schedule beginning all matters on time and moving matters

692

along with respect to all parties interests. I would make myself available for status
conferences and even schedule status conferences regularly in cases that are particularly
adversarial, to offer assistance to parties who find themselves bogged down with
procedural or scheduling disputes that prevent the progress of the litigation.

13. Please describe with particularity the process by which these questions were
answered.

Response: I received the questions on the evening of May 1 1 , 20 1 1 . 1 prepared
responses on May 12, 20 1 1 . 1 consulted with representatives of the Department of Justice
regarding my responses, and then finalized them before authorizing their transmittal to
the Committee.

14. Do these answers reflect your true and personal views?

Response: Y es.

693

Responses of Nannette Jolivette Brown

Nominee to be United States District Judge for the Eastern District of Louisiana
to the Written Questions Senator Amy Klobuchar

1. If you had to describe it, how w ould you characterize your judicial philosophy ~ and
how do you see the role of the judge in our constitutional system?

Response: I would characterize my judicial philosophy and the role of the judge in our
constitutional system as founded on three principals: stability, predictability and civility.
To that end, if confirmed, I would listen to every party fairly and objectively and treat
them with respect and dignity; decide only the issues properly before me; adhere to the
rule of law and precedence; and preside over every matter with calm, even temperament.

2. As the one undemocratic branch, the courts have a special responsibility to make
sure they are available to those Americans most in need of the courts to protect their
rights. What assurances can you give that litigants coming into your courtroom will
be treated fairly regardless of their political beliefs or whether they are rich or poor,
defendant or plaintiff.’

Response: If confirmed, 1 will be bound by precedent. I will treat everyone appearing
before me with dignity, respect and objectivity and only decide issues properly before me
and preside over every case with calm, even temperament. As evidence of my ability to
be fair and objective, and my commitment to the rule of law', 1 have been an advocate at
different times in my career, for widely different interests. I have represented people
with differing political beliefs and from varying walks of life. 1 have always provided an
unwavering commitment to my clients’ interests whether their positions were popular or
not, and despite opposite public opinion or political pressure to do otherwise, in some
instances.

3. In your opinion, how strongly should judges bind themselves to the doctrine of stare
decisis? Does the commitment to stare decisis vary depending on the court?

Response: I believe judges should be strongly bound to the doctrine of stare decisis. The
commitment to stare decisis should not vary depending on the court because this
principle is intended to provide predictability, stability and well-reasoned opinions within
our judicial system.

694

Responses of Timothy M. Cain

Nominee to be United States District Judge for the District of South Carolina
to the Written Questions of Senator Chuck Grassley

1. In Price v. Turner , the defendant-father owed approximately $6,000 in child
support. You found he was in willful contempt of court, and sentenced him to 12
months in prison. The defendant-father was not represented by counsel at that civil
contempt hearing. Your decision was affirmed by the South Carolina Supreme
Court, and is currently pending before the Supreme Court of the United States.
Opponents of your position argue that an indigent litigant has a constitutional right
to counsel in civil proceedings if he is facing incarceration. Why, in your view,
should courts not extend the right of counsel in these cases?

Response: The issue of appointment of counsel for the Defendant was not raised before
me at the contempt hearing, which was conducted utilizing the same procedure employed
by all family courts in South Carolina in conducting hundreds of such hearings each
week. Although the Defendant secured counsel shortly after the hearing, no motion for
reconsideration or other post-hearing motion was made to present this issue to me. The
Defendant raised the issue for the first time on appeal.

The opinion of the South Carolina Supreme Court, which affirmed my ruling, stated that
the sentence was permitted by South Carolina statute and that the result was consistent
with controlling precedent. In the event the Supreme Court of the United Stales rules lhat
the right to appointed counsel should be extended in such cases, I will be bound by and
follow such precedent.

2. What is the most important attribute of a judge, and do you possess it?

Response: The most important attribute of a judge is adherence to the rule of law and its
equal application to all parties. I believe that my work as a state court judge for more
than eleven years demonstrates that 1 possess this attribute.

3. Please explain your view of the appropriate temperament of a judge. What
elements of judicial temperament do you consider the most important, and do you
meet that standard?

Response: A judge should be patient, courteous and respectful to all parties and give
careful attention to the issues before the court. 1 believe my work as a state court judge
reflects that 1 meet this standard.

4. In general, Supreme Court precedents are binding on all lower federal courts and
Circuit Court precedents are binding on the district courts within the particular
circuit. Are you committed to following the precedents of higher courts faithfully
and giving them full force and effect, even if you personally disagree with such
precedents?

695

Response: Yes.

5. At times, judges are faced with cases of first impression. If there were no controlling
precedent that dispositively concluded an issue with which you were presented, to
what sources would you turn for persuasive authority? What principles will guide
you, or what methods will you employ, in deciding cases of first impression?

Response: I would consider the opinions of the Supreme Court of the United States and
the Fourth Circuit Court of Appeals. In the event there was no controlling precedent
from those courts, 1 would look to opinions of the federal appellate courts in other
circuits. If the matter involved a case of first impression, in the absence of controlling or
persuasive authority, I would look to the text of the applicable constitutional or statutory
provision and construe the words in accordance with the plain and ordinary meaning.

6. What would you do if you believed the Supreme Court or the Court of Appeals had
seriously erred in rendering a decision? Would you apply that decision or would
you use your own judgment of the merits, or your best judgment of the merits?

Response: I would be bound by and follow the precedents of the Fourth Circuit Court of
Appeals and United States Supreme Court.

7. Under what circumstances do you believe it appropriate for a federal court to
declare a statute enacted by Congress unconstitutional?

Response: It is appropriate for a federal court to declare a statute enacted by Congress
unconstitutional if Congress, in enacting the statue, has exceeded the authority granted by
the Constitution or enacted a statute which is in conflict with the Constitution.

8. At your hearing, you were asked about the use of precedent and the role of courts in
interpreting laws. You mentioned factors you would use. Is it ever appropriate for
a judge to use foreign law in determining the meaning or application of U.S. law?

Response: It would not be appropriate to use foreign law to determine the meaning or
application of U.S. law unless directed by the Constitution, U.S. statutes or binding
precedent established by the United States Supreme Court or Fourth Circuit Court of
Appeals.

9. Of what value is legislative report language or floor debate in attempting to
determine legislative intent of statutory language?

Response: When a statute is clear and unambiguous, the court should look to the plain
language contained in the text, and controlling precedent of the United States Supreme
Court and the Court of Appeals. If a statute is ambiguous, the sources referenced in the
question could be utilized to develop insight into the process which brought about the
enactment of the statute.

696

10. As you know, the federal courts are facing enormous pressures as their caseload
mounts. If confirmed, how do you intend to manage your caseload?

Response: I would work closely with the Bar, Clerk of Court staff and U.S. Magistrate
Court Judges and utilize a case management system which would track the progress of
cases assigned to me for disposition. Deadlines for completion of pre-trial, discovery and
procedural issues would be established so as to minimize delay.

11. Do you believe that judges have a role in controlling the pace and conduct of
litigation and. if confirmed, w hat specific steps would you take to control your
docket?

Response: I believe that judges do have an important role in controlling the pace and
conduct of litigation. If confirmed, I would utilize a case management system as
described in the answer to Question 10. In addition, I would schedule and conduct pre-
trial status conferences to assure that discovery issues and other procedural matters arc
appropriately addressed in a timely manner so as to put cases in a posture for trial. I
would also encourage the use of alternative dispute resolution such as mediation to
resolve cases and narrow the issues to be decided by the court, and consult the learned
judges in my district as to successful strategies to maximize the efficient use of court time
and personnel.

12. Please describe with particularity the process by which these questions were
answered.

Response: 1 received the questions on May 1 1 , 20 1 1 , and prepared my answers. 1
discussed my responses with a representative of the Department of Justice and after
finalizing the same, authorized transmission to the Senate Judiciary Committee.

13. Do these answers reflect your true and personal views?

Response: Yes.

697

Responses of Timothy M. Cain

Nominee to be United States District Judge for the District of South Carolina
to the Written Questions Senator Amy Klobuchar

1. If you had to describe it, how would you characterize your judicial philosophy - and
how do you see the role of the judge in our constitutional system?

Response: My judicial philosophy is that all parties should be treated equally under the
law, regardless of station in life. A judge should be a fair and impartial arbiter of
disputes brought before the court, and faithfully adhere to the rule of law. Judges should
apply the law to a particular set of facts.

2. As the one undemocratic branch, the courts have a special responsibility to make
sure they are available to those Americans most in need of the courts to protect their
rights. What assurances can you give that litigants coming into your courtroom will
be treated fairly regardless of their political beliefs or whether they are rich or poor,
defendant or plaintiff?

Response: All parties arc entitled to equal access to justice regardless of their social or
economic status. I believe that my record as a state court judge for over eleven years
demonstrates my commitment to equal access to justice for all. If confirmed, I pledge to
continue this commitment, and to treat all parties fairly, affording each a full and fair
opportunity to be heard, in accordance with the provisions of applicable law.

3. In your opinion, how strongly should judges bind themselves to the doctrine of stare
decisis? Does the commitment to stare decisis vary depending on the court?

Response: Judges should adhere to the doctrine of stare decisis and follow established
and controlling precedent. The principle that like cases should be decided in like manner,
and the commitment to stare decisis, should apply to all judges.

698

Responses of William F. Kuntz, II

Nominee to be United States District Judge for the Eastern District of New York
to the Written Questions of Senator Chuck Grassley

1. What is the most important attribute of a judge, and do you possess it?

Response: The most important attribute of a judge is possession of a firm commitment to
the rule of law and the consistent due administration of justice. The judge must embody
the integrity of the judicial system by the systematic application of the applicable law to
the facts of the case before the court. That administration of justice must be exercised in
a manner thoughtful, respectful, fair and impartial to all counsel and to all parties,
Patience and courtesy must always be preserved to ensure the dignity of the proceedings.
1 believe 1 possess that attribute.

2. Please explain your view of the appropriate temperament of a judge. What
elements of judicial temperament do you consider the most important, and do you
meet that standard?

Response: The most important elements of judicial temperament are, first and foremost,
that any judge be consistently respectful, modest, fair, courteous, patient, impartial,
objective, evenhanded and ready, willing and able to rule clearly and decisively. I
believe I meet that standard.

3. In general. Supreme Court precedents are binding on all lower federal courts and
Circuit Court precedents are binding on the district courts within the particular
circuit. Are you committed to following the precedents of higher courts faithfully
and giving them full force and effect, even if you personally disagree with such
precedents?

Response: Yes.

4. At times, judges arc faced with cases of first impression. If there were no controlling
precedent that dispositively concluded an issue with which you were presented, to
what sources would you turn for persuasive authority? What principles will guide
you, or what methods will you employ, in deciding cases of first impression?

Response: Should 1 face a case of first impression for which there was no controlling
precedent, I would take considerable care to review most thoroughly any and all
analogous Supreme Court and Circuit Court rulings. I would also review all
constitutional and all statutory provisions that might arguably bear on the issue. I would
also exercise my discretion and authority narrowly and with the greatest restraint, and
would only decide those issues that necessarily require resolution.

699

5. What would you do if you believed the Supreme Court or the Court of Appeals had
seriously erred in rendering a decision? Would you apply that decision or would
you use your own judgment of the merits, or your best judgment of the merits?

Response: I understand and recognize that as a District Court Judge 1 would be bound by
the precedents of the higher courts. I would therefore apply the decision of the Supreme
Court or of the Court of Appeals.

6. Under what circumstances do you believe it appropriate for a federal court to
declare a statute enacted by Congress unconstitutional?

Response: A federal court should declare a statute enacted by Congress unconstitutional
when Congress has exceeded its constitutional authority or enacted a statute in
contravention of a constitutional provision. Therefore, 1 would be guided by and
systematically follow the precedents of the higher courts, including the Supreme Court
and the Court of Appeals for the Second Circuit.

7. At your hearing, you were asked about the use of precedent and the role of courts in
interpreting laws. V'ou mentioned factors you would use. Is it ever appropriate for
a judge to use foreign law in determining the meaning or application of U.S. law?

Response: No.

8. Of what value is legislative report language or floor debate in attempting to
determine legislative intent of statutory language?

Response: The Supreme Court has ruled that when a statute is clear and unambiguous on
its face the text controls and there is no need to resort to a review of legislative intent.

9. As you know, the federal courts are facing enormous pressures as their caseload
mounts. If confirmed, how do you intend to manage your caseload?

Response: In consultation with counsel for all parties to the action 1 would set firm and
reasonable deadlines for motions and pretrial discovery. I would enforce those deadlines
most firmly. 1 would determine pretrial motions expeditiously. I would encourage
settlement and support the use of mediation. 1 would rely on the uniformly excellent
magistrate judges of the Eastern District of New York to handle appropriate aspects of
cases assigned to me, consistent with their statutory authority. I would establish firm trial
dates and preside over trials with efficiency. I would Icam about and deploy the best
practices of more experienced Eastern District Judges in managing my caseload
efficiently.

10. Do you believe that judges have a role in controlling the pace and conduct of
litigation and, if confirmed, what specific steps would you take to control your
docket?

700

Response: Yes. Judges have a crucial role in controlling the pace and the conduct of
litigation. Judges must ensure the due administration of justice by the prompt resolution
of disputes without undue expense. Please see my response to question 9 with respect to
those specific steps I would undertake to control my docket if confirmed.

11. Please describe with particularity the process by which these questions were
answered.

Response: I prepared my responses after receiving these questions on May 1 1, 2011.

1 then reviewed my responses with representatives of the Department of Justice, after
which 1 finalized my responses. I then authorized their transmittal to the Committee.

12. Do these answers reflect your true and personal views?

Response: Yes.

701

Responses of William F. Kuntz II

Nominee to be United States District Judge for the Eastern District of New York
to the Written Questions of Senator Amy Klobuchar

1. If you had to describe it, how would you characterize your judicial philosophy -
and how do you see the role of the judge in our constitutional system?

Response: If 1 had to describe it, I would characterize my judicial philosophy as one
traditional for a United States District Court Judge: of applying the law to the facts of
the particular case and controversy before the Court. I sec the role of the District Court
Judge as applying the law to the facts of the case before the Court with patience,
humility and respect for the litigants and their counsel.

2. As the one undemocratic branch, the courts have a special responsibility to make
sure they are available to those Americans most in need of the courts to protect
their rights. What assurances can you give that litigants coming into your
courtroom will be treated fairly regardless of their political beliefs or whether they
are rich or poor, defendant or plaintiff?

Response: I believe that equal justice under law is the paramount value of our judiciary.
All persons stand equal before the law. In my twenty three years (23) as a
Commissioner on the Civilian Complaint Review Board of the City of New York, I
applied the law to the faets of each case without fear or favor. In my tenure as a
member of the Board of Trustees of the Legal Aid Society of New York and the
Lawyers’ Committee for Civil Rights Under Law I have worked with leading lawyers
and jurists to ensure equal access to justice tor all, regardless of political beliefs, socio-
economic status, or whether they were defendants or plaintiffs. I would ensure that
same access and just treatment in my courtroom were I fortunate enough to be
confirmed as a United States District Court Judge.

3. In your opinion, how strongly should judges bind themselves to the doctrine of
stare decisis? Docs the commitment to stare decisis vary depending on the court?

Response: I believe that District Court Judges arc most strongly bound to follow the
precedent established by the United States Supreme Court and the Court of Appeals. In
my case, as a District Court Judge in the Eastern District of New York, should 1 be
fortunate enough to be confirmed I would follow the precedents of the United States
Supreme Court and the Court of Appeals for the Second Circuit. The commitment to
stare decisis does not vary depending on the court: that commitment applies to all
courts.

702

Responses of John A. Ross

Nominee to be United States District Judge for the Eastern District of Missouri
to the Written Questions of Senator Chuck Grassley

1. Under United States v. Booker, the Federal Sentencing Guidelines are advisory
rather than mandatory. If confirmed, how much deference would you afford the
Guidelines?

Response: I would give great deference to the Federal Sentencing Guidelines. I believe
uniformity and consistency are important considerations for a fair system of sentencing.

2. Under what circumstances would you be will to depart from the Guidelines?

Response: I would consider the sentencing range set forth in the Sentencing Guidelines
and any applicable provisions for upward or downward departures. I would then consider
all of the sentencing factors in the Sentencing Reform Act (SRA), 18 U.S.C. § 3553(a).
After those considerations, I would depart from the Guidelines only if such departure was
supported by the facts of the case and the law.

3. What is the most important attribute of a judge, and do you possess it?

Response: I believe the most important attribute of a judge is to be fair and impartial, by
exhibiting a willingness to listen and an ability to keep an open mind, by treating all
litigants respectfully, and by providing a full and fair opportunity to be heard. I believe 1
possess that attribute.

4. Please explain your view of the appropriate temperament of a judge. What
elements of judicial temperament do you consider the most important, and do you
meet that standard?

Response: I believe the appropriate temperament for a judge is to be patient and
respectful while maintaining control of the proceedings to ensure the fair administration
of justice. 1 believe I meet that standard.

5. In general, Supreme Court precedents are binding on all lower federal courts and
Circuit Court precedents are binding on the district courts within the particular
circuit. Are you committed to following the precedents of higher courts faithfully
and giving them full force and effect, even if you personally disagree with such
precedents?

Response: If confirmed as a District Judge, I would follow the precedents of the
Supreme Court and the Eighth Circuit Court of Appeals.

6. At times, judges are faced with cases of first impression. If there were no controlling
precedent that dispositively concluded an issue with which you were presented, to

703

what sources would you turn for persuasive authority? What principles will guide
you, or what methods will you employ, in deciding cases of first impression?

Response: In a case of first impression, 1 would look to analogous Supreme Court and
Eighth Circuit cases. If there were no such cases, 1 would then look to other federal
precedent. I would also review all relevant constitutional and statutory provisions that
may address the issue. In matters of statutory interpretation, 1 would look to the plain
language of the statute. If the statutory language is unclear, I would then consider the
legislative history of the statute.

7. At your hearing, you were asked about the use of precedent and the role of courts in
interpreting laws. You mentioned factors you would use. Is it ever appropriate for
a judge to use foreign law in determining the meaning or application of U.S. law?

Response: The only circumstance where it would be appropriate for a District Judge to
use foreign law to determine the meaning or application of U.S. law is if specifically
directed to do so by precedent of the Supreme Court or Court of Appeals.

8. Of what value is legislative report language or floor debate in attempting to
determine legislative intent of statutory language?

Response: While legislative report language or floor debate may have some value if a
statute is ambiguous or vague, the determination of legislative intent is not generally
necessary when the plain language of the statute is clear.

9. What would you do if you believed the Supreme Court or the Court of Appeals had
seriously erred in rendering a decision? Would you apply that decision or would
you use your own judgment of the merits, or your best judgment of the merits?

Response: If confirmed as a District Judge, I would not substitute my opinion or
judgment for the established case law.

10. Under what circumstances do you believe it appropriate for a federal court to
declare a statute enacted by Congress unconstitutional?

Response: Under limited circumstances, it may be appropriate to declare a statute
unconstitutional if it violates the plain language of the Constitution of if Congress has
clearly exceeded its authority under the Constitution.

1 1. As you know, the federal courts are facing enormous pressures as their caseload
mounts. If confirmed, how do you intend to manage your caseload?

Response: If confirmed, I intend to manage tny caseload by early involvement with the
parties to identity and resolve issues. After consulting the attorneys, 1 will set firm yet
reasonable expectations for the parties and establish a clear schedule for discovery,
motions and trial settings. I will enforce reasonable deadlines and promptly rule on

704

motions. 1 will monitor my caseload through regular status conferences. I will also
encourage settlement and the use of mediation where appropriate.

12. At your hearing, you stated you “fully believe that everyone is entitled to a full and
fair day in court.” While I respect the message I think you were trying to send, I
want to ask you if this is an absolute assertion. Is there an appropriate use for
summary judgment? Do those w ho file frivolous law suits deserve a full and fair
day in court? What about prisoner post-conviction petitions?

Response: A full and fair day in court may have a different meaning in different cases.
There are certain cases, including some frivolous lawsuits and some prisoner post-
conviction petitions, which can be finally resolved through pre-trial motions such as
summary j udgment.

13. Do you believe that judges have a role in controlling the pace and conduct of
litigation and, if confirmed, what specific steps would you take to control your
docket?

Response: 1 believe a judge has a significant role in controlling the pace and conduct of
litigation. If confirmed as a District Judge, I would consult with the attorneys at a very
early stage and, giving consideration to the complexity of the case, establish a schedule
with clear deadlines. 1 would continue during the pendency of the case to work with the
attorneys and monitor the progress of the case.

14. Please describe with particularity the process by which these questions were
answered.

Response: I received the questions on May 1 1 , 20 1 1 , and after careful consideration, I
prepared my responses on May 12, 201 1. 1 then reviewed my responses with
representatives of the Department of Justice, finalized my responses, and authorized their
transmittal to the Committee.

15. Do these answers reflect your true and personal views?

Response: Yes.

705

Responses of John A. Ross

Nominee to be United States District Judge for the Eastern District of Missouri
to the Written Questions Senator Amy Klobuchar

1 . If you had to describe it, how would you characterize your judicial philosophy - and
how do you see the role of the judge in our constitutional system?

Response: My judicial philosophy is to treat everyone appearing in court equally and
respectfully while providing a fair and impartial opportunity to be heard. 1 believe the
role of a judge in our constitutional system is to resolve disputes by carefully and
thoughtfully applying the law to the facts of each case.

2. As the one undemocratic branch, the courts have a special responsibility to make
sure they are available to those Americans most in need of the courts to protect their
rights. What assurances can you give that litigants coming into your courtroom will
be treated fairly regardless of their political beliefs or whether they are rich or poor,
defendant or plaintiff?

Response: Having handled thousands of cases over the past eleven years as a circuit
judge in the busiest circuit in the State of Missouri, 1 have always treated those who come
before the court equally and respectfully, in accordance with my judicial philosophy. If
confirmed, I will continue to perform the duties of my judicial office impartially and
diligently, ensuring that every litigant in my court is provided with a fair and impartial
opportunity to be heard.

3. In your opinion, how strongly should judges bind themselves to the doctrine of stare
decisis? Does the commitment to stare decisis vary depending on the court?

Response: If confirmed as a District Judge, I would follow the binding precedents of the
higher courts, including the Supreme Court and the Eighth Circuit Court of Appeals. 1
have not considered how a higher court might regard the doctrine of stare decisis.

706

Responses of Nancy Torresen

Nominee to be United States District Judge for the District of Maine
to the Written Questions of Senator Chuck Grassley

Congress passed the Partial-Birth Abortion Ban Act in 2003, and the Supreme
Court held this statute did not violate the Constitution in 2007 in Gonzales v.
Carhari. Kansas has passed a late-term abortion law that bars abortions at 22
weeks gestation, or generally 20 weeks after conception, except under
circumstances where it is necessary to save the life of the mother. Kansas argues
that it has a legitimate interest in protecting the unborn by 20 weeks because
they react to stimuli that would be recognized as painful if applied to an adult.
Idaho and Oklahoma have passed similar legislation.

a. Do you believe that the Kansas law is consistent with the Supreme Court’s
decision in Planned Parenthood v. Casey, where the Court said that abortion
restrictions cannot pose an “undue burden”?

Response: I have not studied the Kansas law or Planned Parenthood v. Casey,

505 U.S. 833 (1992) and Gonzales v. Carhart, 550 U.S. 124 (2007), both of
which arc lengthy cases with plurality opinions. I understand that the prevailing
analysis as summarized in Casey and affirmed in Carhart is whether the state
statute constitutes an “undue burden” on a woman’s right to a pre-viability
abortion. Casey , 505 U.S. at 846; Carhart , 550 U.S. at 145. This area of the law
also requires an understanding of complex medical issues and technological
advances which may be relevant to the analysis by the Supreme Court of whether
abortion restrictions impose an “undue burden.” If confirmed, 1 would work
diligently to understand this complicated area where medicine and law converge,
and I would faithfully apply the existing precedents of the United States Supreme
Court and the United States Court of Appeals for the First Circuit on any issues to
come before me.

b. Given your interest in women’s health issues, do you believe that states have
a legitimate interest in regulating or restricting women’s access to abortions
when the unborn feel pain?

Response: The Supreme Court has reaffirmed in Planned Parenthood v. Casev
and in Carhart that the states have “legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the fetus that may
become a child.” Casey, 505 U.S. at 846; Carhart, 550 U.S. at 145. I have not
studied this issue sufficiently to form an opinion on whether or how fetal pain
would affect the issue of restricting a woman’s access to abortion. If such an
issue arose, I would faithfully apply the precedents established by the United
States Supreme Court and the United States Court of Appeals for the First Circuit
to the tacts as developed in the case before me.

707

2. At your hearing, I asked about the Mabel Wadsworth Women’s Health Center.
In 2009. the Center held a vigil for Dr. George Tiller. You indicated you were
not familiar with the incident. Would you please review any calendar, notes, or
other materials to confirm your lack of involvement with any vigil or statement
from the Center? Please report back to me with the results of your review.

Response: I have reviewed my calendar and my notes and materials from 2009
relating to my involvement at the Mabel Wadsworth Women's Health Center. 1 can
confirm that I was not involved in the planning of a vigil by the Mabel Wadsworth
Women’s Health Center. I did not attend any vigil for Dr. Tiller. I was also not
involved in the preparation of any statements released by the Mabel Wadsworth
Women’s Health Center relating to Dr. Tiller’s death.

3. In your career as an Assistant United States Attorney, you briefed a number of
habeas corpus cases. Considering your experience with the case law surrounded
these petitions, do you agree with the Supreme Court’s Boumediene decision
(which extended the reach of American civilian law and the Writ of Habeas
Corpus to cover foreign-citizen enemy combatant terrorists apprehended abroad
and held at Guantanamo Bay)? Why or why not?

Response: The habeas corpus cases which I briefed all involved United States
citizens convicted of crimes in the State of Maine. My experience does not extend to
the area of foreign citizen enemy combatant terrorists apprehended abroad and held at
Guantanamo Bay.

a. How would you reconcile Boumediene with Johnson v. Eisentrager, which -
according to Justice Scalia’s dissent - “held beyond any doubt that the
Constitution does not ensure habeas for aliens held hy the United States in
areas over which our Government is not sovereign”?

Response: The majority opinion in Boumediene v. Bush, 553 U.S. 723, 762
(2008), acknowledged that the enemy aliens in Johnson v. Eisentrager , 339 U.S.
763 (1950) were denied access to the writ of habeas corpus and quoted the
Eisentrager Court's statement that “at no relevant time were [the enemy aliens]
within any territory over which the United States is sovereign and [that] the
scenes of their offense, their capture, their trial and their punishment were all
beyond the territorial jurisdiction of any court of the United States.” Boumediene ,
553 U.S. at 762 (quoting Eisentrager , 339 U.S. at 778). The Boumediene
majority then proceeded to distinguish Eisentrager, and it ultimately concluded
that aliens detained as enemy combatants at Guantanamo Bay were entitled to use
the writ of habeas corpus to challenge the legality of their detention. Boumediene
is now the controlling authority on the issue of whether the writ is available to
aliens detained as enemy combatants at Guantanamo Bay. I have no personal
views on this issue. I will faithfully apply any existing precedents from the
United States Supreme Court and the United States Court of Appeals for the First
Circuit.

708

4. What is the most important attribute of a judge, and do you possess it?

Response: In my view, the most important attribute of a judge is impartiality. A judge
needs to be able to approach every case with an open mind, treat the parties even-
handcdly, consider the evidence fairly, and diligently apply the law to the case at hand. I
believe that I possess these attributes.

5. Please explain your view of the appropriate temperament of a judge. What
elements of judicial temperament do you consider the most important, and do you
meet that standard?

Response: A judicial temperament is a blend of qualities which are well spelled out in
Canon 3 of the Code of Conduct for United States Judges. “A judge should be patient,
dignified, respectful and courteous to litigants, jurors, witnesses, lawyers and others with
whom the judge deals in an official capacity.” I believe I have the appropriate
temperament to be a judge.

6. In general, Supreme Court precedents are binding on all lower federal courts and
Circuit Court precedents are binding on the district courts within the particular
circuit. Are you committed to following the precedents of higher courts faithfully
and giving them full force and effect, even if you personally disagree with such
precedents?

Response: Yes.

7. At times, judges are faced with cases of first impression. If there were no controlling
precedent that dispositively concluded an issue with which you were presented, to
what sources would you turn for persuasive authority? What principles will guide
you, or w hat methods will you employ, in deciding cases of first impression?

Response: In a matter of first impression, I would focus first on the plain meaning of any
text [ was called upon to construe. If that were ambiguous, I would look to the
legislature’s purpose. 1 would look for analogous law within the Court of Appeals for the
First Circuit or the United States Supreme Court for guidance in deciding the case.
Finally, I would consider cases from other Circuit or District Courts that might have
already dealt with the issue.

8. What would you do if you believed the Supreme Court or the Court of Appeals had
seriously erred in rendering a decision? Would you apply that decision or would
you use your own judgment of the merits, or your best judgment of the merits?

Response: I would apply the decision of the Supreme Court or the Court of Appeals for
the First Circuit regardless of whether I personally agree with the decision.

709

9. At your hearing, you were asked about the use of precedent and the role of courts in
interpreting laws. You mentioned factors you would use. Is it ever appropriate for
a judge to use foreign law in determining the meaning or application of U.S. law?

Response: I cannot envision an instance where it would be appropriate to rely on foreign
law to determine the meaning or application of U.S. law.

10. Under what circumstances do you believe it appropriate for a federal court to
declare a statute enacted by Congress unconstitutional?

Response: A federal court should strike down a statute as unconstitutional only where it
clearly violates the United States Constitution or where Congress has exceeded its
Constitutional boundaries. General canons of construction set forth by the United States
Supreme Court should be followed before any determination of unconstitutionality is
made.

11. As you know, the federal courts are facing enormous pressures as their caseload
mounts. If confirmed, how do you intend to manage your caseload?

Response: If confirmed, I would coordinate with the Chief Judge in my district. I would
take advantage of the weekly reports and the case management software used in my
District to keep on top of the cases assigned to me. 1 have found, throughout my career,
that most challenges can be met by hard work and perseverance.

12. Do you believe that judges have a role in controlling the pace and conduct of
litigation and, if confirmed, what specific steps would you take to control your
docket?

Response: 1 believe that judges play an important role in controlling the pace and
conduct of litigation. If confirmed, I would follow the practice in the District of Maine of
issuing scheduling orders in civil cases and discovery orders in criminal cases to notify
the parties of the expectations and deadlines for every case.

13. Please describe with particularity the process by which these questions were
answered.

Response: I received these questions on May 1 1 , 20 1 1 . 1 drafted my answers and asked
the U.S. Department of Justice to submit them on my behalf.

14. Do these answers reflect your true and personal views?

Response: Yes.

710

Responses of Nancy Torresen

Nominee to be United States District Judge for the District of Maine
to the Written Questions Senator Amy Klobuchar

1. If you had to describe it, how would you characterize your judicial philosophy - and
how do you see the role of the judge in our constitutional system?

Response: My view of a judge’s role and my judicial philosophy are essentially the same
thing. The federal district court judge has the job of approaching every case with an open
mind. The judge must listen carefully to the parties, find any relevant facts if acting as the
factfinder, and apply the law as it has been set forth cither by statute, the United States
Constitution, or in caselaw from the United States Supreme Court or the United States
Court of Appeals.

2. As the one undemocratic branch, the courts have a special responsibility to make
sure they are available to those Americans most in need of the courts to protect their
rights. What assurances can you give that litigants coming into your courtroom will
be treated fairly regardless of their political heliefs or whether they are rich or poor,
defendant or plaintiff?

Response: In my view, the most important attribute of a judge is impartiality. A judge
needs to be able to approach every case with an open mind, treat the parties even-
handedly, consider the evidence fairly, and diligently apply the law to the case at hand. I
believe that 1 possess these attributes.

3. In your opinion, how strongly should judges bind themselves to the doctrine of stare
decisis? Does the commitment to stare decisis vary depending on the court?

Response: Federal district court judges are absolutely bound by the doctrine of stare
decisis. The job of the federal judge is to apply the law as it has been set forth in the
Constitution, in statutes or in legal precedents. I have the utmost respect for the rule of
law and for the predictability and stability which comes from following precedent. Stare
decisis is an important principle for all levels of the federal bench, but it is particularly
important for federal district court judges. Federal district court judges should not be
policy makers.

711

CHAIR
Benjamin H. Hill, lit
Suite 3700
301 East Kennedy Boulevard
Tampa, FL 33602-51 S6

FIRST CIRCUIT
Lisa G.Atrowood
28 Slate Street
Boston, MA 02109

SECOND CIRCUIT
Beth L- Kaufman

60 East 42nd Street
NewYoik, NY 10165-0023

THIRD CIRCUIT
Robert C. Heim
Cira Center
2929 Arch Street
Philadelphia. PA 191 CM -2808

FOURTH CIRCUIT
E. Fitzgerald Parnell. Ill
Suite 2300
301 South College Street
Charlotte, NC 26202 -M2 1

FIFTH CIRCUIT
David VU. Clark
Suite 400
One laefaon Place
188 East Capitol Street
Jackson, MS 39201
SIXTH CIRCUIT
W. Anthony Jenkins
Suite 40CO
SOO Woodward Avenue

Detroit, Ml 48226

SEVENTH CIRCUIT
Stephan Landsman
25 East Jackson Boulevard
Chicago. IL 60604

EIGHTH CIRCUIT

David L Brown
flth Floor

218 Sixth Avenue
Des Moines, IA 50309-4013

NINTH CIRCUIT
Joanne M. Garvey
12th Floor
4 Embarcadcro Center
San FflmeiKO. CA 94111-4158
Alan Van Etffin
Suite 70(1
810 Richards Street
Honolulu, HI 96813-4728

TENTH CIRCUIT
Paul T. Moxley
11th Floor
1 1 1 East 8 roadway

Salt Lake City, UT 841 1 1-S22S

ELEVENTH CIRCUIT
Ramin A. Abadin
Suite 1206
91 SS South Dadcland Boulvard
Miami, FL 33156-2739

D.C. CIRCUIT
Carolyn H. Williams
725 12* Street, N.W.
Washington, DC 20005-S901
FEDERAL CIRCUIT
Joseph M. Potenza
Suite 1200
1100 1 3* Street N.W.
Washington, DC 20005-40S6

BOARD OF GOVERNORS
LIAISON
C. Timothy Hopkins

Idaho falls. ID 83402

STAFF COUNSEL
Denise A. Cardman
202-662-1761
Cardmand^staff.abanetorg

SUBMISSIONS FOR THE RECORE

/BV

Defending Liberty
Pursuing Justice

PU™ respond to: AMERi CAN BAR ASSOC i ATI ON

Benjamin H. Hill, III, Esq.

Hill Ward Henderson

101 E. Kennedy Blvd., Suite 3700

Tampa, Florida 33602

Tel: (813)227-8420

Fax: (813) 221-2900

Email: bhili@hwhlaw.com

Standing Committee on
the Federal judiciary

740 Fifteenth Street, NW
Washington, DC 20005-1022
Facsimile: (202) 662-1762

VIA EMAIL AND FIRST CLASS MAIL

March 3, 2011

The Honorable Patrick J. Leahy
Chairman

Committee on die Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, DC 20510

Re: Nomination of Nanette Jolivette Brown

To the United States District Court
for the Eastern District of Louisiana

Dear Chairman Leahy:

The ABA Standing Committee on the Federal Judiciary has completed its
evaluation of the professional qualifications of Nanette Jolivette Brown who has been
nominated for a position on the United States District Court for the Eastern District of
Louisiana. As a result of our investigation, the Committee is of the unanimous opinion
that Ms. Brown is "Qualified" for the position.

A copy of this letter has been provided to Nanette Jolivette Brown.

Benjamin H. Hill, III
Chair

cc: Nanette Jolivette Brown

The Honorable Robert F. Bauer
Michael Zubrensky, Esq. (via email)

ABA Standing Committee on the Federal Judiciary (via email)
Denise A. Cardman, Esq. (via email)

March 3, 201 1
Page 2

This letter was
States Senate,
March 3, 201 1 .

Majority:

Minority:

712

sent to the following members of the Committee on the Judiciary, United
224 Dirksen Senate Office Building, Washington, D.C. 20510-6275 on

Hon. Patrick J. Leahy, Chairman
Hon Herbert Kohl
Hon. Dianne Feinstein
Hon. Charles E. Schumer
Hon. Richard J. Durbin
Hon. Sheldon Whitehouse
Hon. Amy Klobuchar
Hon. A1 Franken
Hon. Christopher Coons
Hon. Richard Blumenthal

Hon., Charles E. Grassley, Ranking Member

Hon. Orrin G. Hatch

Hon. Jeff Sessions

Hon. Jon Kyi

Hon. Lindsey O. Graham

Hon. John Comyn

Hon. Mike Lee

Hon. Tom Cobum

713

MINT'S ORCt.-lf

/BV

Defending Liberty
Pursuing justice

P/rnif respond to: AMERICAN BAR ASSOCIATION

Benjamin H. Hill, III, Esq.

Hill Ward Henderson

101 E. Kennedy Bled., Suite 3701)

Tampa, Florida 33602
Tel: (813) 227-8420
Fas; (813)221-2900
Email: hhi i lv/; h whlaw.com

Standing Committee on
the Federal Judiciary

740 Fifteenth Street NW
Washington, DC 20005 - J 022
Facsimile: (202) 652-1 762

VIA EMAIL AND FIRST CLASS MAIL

February 17, 2011

The Honorable Patrick j. Leahy
Chairman

Committee on the Judiciary
United States Senate

224 Dirks en Senate Office Building
Washington, DC 20510

Re: Nomination of Timothy Martin Cain

To the United States District Court
for the District of South Carolina

Dear Chairman Leahy:

The ABA Standing Committee on the Federal Judiciary has completed its
evaluation of the professional qualifications of Timothy Martin Cain who has been
nominated for a position on *hc United States District Court for the District of South
Carolina. As a result of our investigation, the Committee is of the unanimous opinion
that Judge Cain is "Qualified" for the position.

A copy of this letter has been provided to Timothy Martin Cain.

Benjamin 1 1. Mill, III
Chair

cc: Timothy Martin Cain

The Honorable Robert F. Bauer
Michael Zubrensky, Esq. (via email)

ABA Standing Committee on the Federal Judiciary (via email)
Denise A. Cardman, Esq. (via email)

714

February 17, 201 1
Page 2

This letter was sent to the following members of the Committee on the Judiciary, United
States Senate, 224 Dirksen Senate Office Building, Washington, D.C. 20510-6275 (via
email) on February 17, 2011.

Majority:

Hon. Pa trick J. Leahy, Chairman

Hon Herbert Kohl

Hon. Dianne Feinstein

Hon. Charles E. Schumei

Hon. Richard J . Durbin

Hon. Sheldon Whitehouse

Hon. Amy Klobuchar

Hon. A1 Franken

Hon. Christopher Coons

Hon. Richard Blumenthal

Minority:

Hon., Charles E. Grassley, Ranking Member

Hon. Orrm G. Hatch

Hon. Jeff Sessions

Hon. Jon Kyi

Hon. Lindsey O. Graham

Hon. John Comyn

Hon. Mike Lee

Hon. Tom Cobum

715

./13V"

Defending liber ?y
Pursuing justice

p-Mii ia

Benjamin 11. Hill, III, Esq.

Hill Ward Henderson

10! E, Kennedy Blvd, Suite 3700

Tampa, Florida 33602

Tel: (813) 227-8420

Fax: (SI 3) 22 1 -2900

Email: frhill ;#h wh liw.com

AMERICAN BAR ASSOCIATION

Standing Committee on
the Federal judiciary

740 Fifteenth Street, NVV
Washington, DC 20G05-I022
Facsimile: i202) 602 ; 762

VIA EMAIL AND FIRST CLASS MAIL

March 10, 2011

The Honorable Patrick}. Leahy
Chairman

Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, DC 205 JO

Re: Nomination of William Francis Kuntz, II

To the United States District Court
for the Eastern District of New York

Dear Chairman Leahy:

The ABA Standing Committee on the Federal Judiciary has completed its
evaluation of the professional qualifications of William Francis Kuntz, II who has been
nominated for a position on the United S*a*es District Court for the Eastern District of
New York. As a result of our investigation, the Committee is of the unanimous opinion
that Mr. Kuntz is "Well Qualified" for the position.

A copy of this letter has been provided to William Francis Kuntz, II.

Benjamin H. Hill, III
Chair

cc: William Francis Kuntz, II

The Honorable Robert F. Bauer
Michael Zubrensky, Esq. (via email)

ABA Standing Committee on the Federal Judiciary (via email)
Denise A. Cardman, Esq. (via email)

716

March 10, 2011
Page 2

This letter was sent to the following members of the Committee on the Judiciary, United
States Senate, 224 Dirksen Senate Office Building, Washington, D.C. 20510-6275 on
Match 10, 2011.

Majority:

Hon. Patrick J. Leahy, Chairman

Hon Herbert Kohl

Hon. Dianne Fcinstein

Hon. Charles E. Schumer

Hon. Richard J. Durbin

Hon. Sheldon Whitehouse

Hon. Amy Klobuchar

Hon. A1 Franken

Hon. Christopher Coons

Hon. Richard Blumenthal

Minority:

Hon., Charles E. Grassley, Ranking Member

Hon. Orrin G. Hatch

Hon. Jeff Sessions

Hon. Jon Kyi

Hon. Lindsey O. Graham

Hon. John Cornyn

Hon. Mike Lee

Hon. Tom Cobum

717

THIRO CIRCUIT
Robert C. Heim
Cira Center

Philadelphia, PA 191W-2806
FOURTH CIRCUIT

5uite 2300
301 South College Street
Charlotte, NC 28202-6021

FIFTH CIRCUIT
David W. Clark

One lackson Place
138 East Capitol Street
Jackson, MS 39201
SIXTH CIRCUIT

S00 Woodward Avenue
Detroit. Ml 48226

SEVENTH CIRCUIT
Stephan landsman
2S East Jackson Boulevard
Chicago, IL 60604

EIGHTH CIRCUIT
David L. Brown
6th Floor
Fleming Building
216 Sixth Avenue
Dos Moines, IA., 50309-401 3

NINTH CIRCUIT
Joanne M. Garvey
1 7ih Floor
4 Emharcadero Center
San Francisco, CA <141114156
Alan Van Etten
Suite 770
ftuahl Tower
1003 Bishop Street
Honolulu, HI 96813

TENTH CIRCUIT

11th Floor
1 1 1 East Broadway
Salt lake City, UT 841T1-S22S

ElEVENTH CIRCUIT
Ramdn A. Abadin

Suite 1208
9155 South Dadeland BoulvanJ
Miami, FI 33156-2739

D.C. CIRCUIT
Carolyn H. Williams
725 12“ Street, N.W.
Washington, DC 20005-5901

FEDERAl CIRCUIT
losepti M. Potenza
Suite 1200
1 1 0013* Street, N.W.
Washington, DC 20005-4056

BOARD OF GOVERNORS
LIAISON
C. Timothy Hopkins
428 Park Avenue
Idaho Falls. 10 83402

STAFF COUNSEL
Denise A. Cardman
202-662-1761

P/eau rtspand It:

Benjamin H. Hill, III, Esq.

HiSl Ward Henderson

101 E. Kennedy Blvd., Suite 3700

Tampa, Florida 33602

Tel: {813)227-8420

Fax: (813)221-2900

/15V

Defending Liberty
Pursuing Justice

AMERICAN BAR ASSOCIATION Standing Committee on
the Federal Judiciary

740 Fifteenth Street, NW
Washington, DC 20005-1022
Facsimile: {202) 662-1762

VIA EMAIL AND FIRST CLASS MAIL

December 1, 2010

The Honorable Patrick J. Leahy
Chairman

Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, DC 20510

Re: Nomination of John Andrew Ross

To the United States District Court
for the Eastern District of Missouri

Dear Chairman Leahy:

Die ABA Standing Committee on the Federal Judiciary has completed its
evaluation of the professional qualifications of John Andrew Ross who has been
nominated for a position on the United States District Court for the Eastern District of
Missouri. As a result of our investigation, the Committee is of the unanimous opinion
that Judge Ross is "WQ" for the position.

A copy of this letter has been provided to John Andrew Ross.

Benjamin H. Hill, III
Chair

cc: John Andrew Ross

The Honorable Robert F. Bauer
Michael Zubrensky, Esq. (via email)

ABA Standing Committee on the Federal Judiciary (via email)
Denise A. Cardman, Esq. (via email)

718

December 1, 2010
Page 2

This letter was sent to the following members of the Committee on the Judiciary, United
States Senate, 224 Dirksen Senate Office Building, Washington, D.C. 20510-6275 on
December 1, 2010.

Majority: Hon. Patrick J. Leahy, Chairman

Hon Herbert Kohl
Hon. Dianne Feinstein
Hon. Russell D. Feingold
Hon. Charles E. Schumer
Hon. Richard J. Durbin
Hon. Benjamin L. Cardin
Hon. Sheldon Whitehouse
Hon. Amy Klobuchar
Hon. Edward E. Kaufman
Hon. Arlen Specter
Hon. A1 Franken

Minority:

Hon. Jeff Sessions, Ranking Member

Hon. Oriin G. Hatch

Hon. Charles E. Grassley

Hon. Jon Kyi

Hon. Lindsey O. Graham

Hon. John Cornyn

Hon. Tom Cobum

719

CHAIR
Benjamin H. Hill, 111

Tampa, FI *33602-5156
FIRST CIRCUIT

28 Stale Slicet
Boston, MA 02109

SECOND CIRCUIT
Beth L. Kaufman
60 East 42nd Street
Newark, NY 10165-0023

THIRD ORCUIT
Robert C Heim
Cira Center
2929 Arch Street
Philadelphia, PA 19109-2808

FOURTH CIRCUIT
£. Fitagerafd Parnell, ill
Suite 2300
3C1 South College Street
Charlotte, NC 28202-6021

SIXTH CIRCUIT
W. Anthony Jenkins

S00 Woodward Avenue

Detroit, Ml 48226

SEVENTH CIRCUIT
Stephan Landsman
25 Eastlackson Boulevard
Chicago, II 60604

EIGHTH CIRCUIT
David L Brown
8th Floor

Fleming Building

2 1 8 Sixth Avenue
Des Moines, IA 50309-4013

NINTH ORCtJIT
Joanne M. Garvey

4 Embarcadero Center
San Francisco, CA 941 1 MISS
Alan Van Ertcn
Suite 700
810 Rtehatds Street
Honolulu, HI 96813-4728

TENTH CIRCUIT
Paul T. Moxley
1 Ilh Floor
lit Fast Broadway
Salt Lake City. UT 84111-5225

ELEVENTH CIRCUIT
Ram6n A. Ahatlln
Suite 1208
91 S5 South Oadeland Boolvard
Miami, FL 33156-2739

D.C. CIRCUIT
Carolyn H. Williams
725 12* Street. N.W.
Washington, DC 20005-5901
FEDERAL CIRCUIT
Joseph M, Potenxa
Suite 1200
1 100 13* Street. N.W.
Washington, DC 30005-40S6

BOARD OF GOVERNORS
LIAISON
C. Timothy Hopkins
428 Park Avenue
Idaho Falls. ID 81402

STAFF COUNSEL
Denise A. Canjman
202-662-1761
cardmandsistaf(.ab<met.org

7BV

Defending Liberty
Pursuing Justice

Pltast TTSpon/i to:

Benjamin H. Hill, 111, Esq.

Hill Ward Henderson

101 E. Kennedy Bivd., Suite 3700

Tampa, Florida 33602

Tel: (813) 227-8420

Fax:(813)221-2900

Email: bhill@hwhlaw.com

AMERICAN BAR ASSOCIATION

Standing Committee on
the Federal Judiciary

740 Fifteenth Street, NW
Washington, DC 20005-1022
Facsimile: (202) 662-1762

VIA EMAIL AND FIRST CLASS MAIL

March 3, 2011

The Honorable Patrick J. Leahy
Chairman

Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, DC 20510

Re: Nomination of Nancy Torresen

To the United States District Court
for the District of Maine

Dear Chairman Leahy:

The ABA Standing Committee on the Federal Judiciary has completed its
evaluation of the professional qualifications of Nancy Torresen who has been nominated
for a position on die United States District Court for the District of Maine. As a result of
our investigation, the Committee is of the unanimous opinion that Ms. Torresen is "Well
Qualified" for the position.

A copy of this letter has been provided to Nancy Torresen.

Benjamin H. Hill, III
Chair

cc: Nancy Torresen

The Honorable Robert F. Bauer
Michael Zubrensky, Esq. (via email)

ABA Standing Committee on the Federal Judiciary (via email)
Denise A. Cardtnan, Esq. (via email)

720

March 3, 2011

Page 2

This letter was sent to the following members of the Committee on the Judiciary, United
States Senate, 224 Dirksen Senate Office Building, Washington, D.C. 20510-6275 on
March 3, 2011.

Majority:

Hon. Patrick J. Leahy, Chairman

Hon Herbert Kohl

Hon. Dianne Feinstein

Hon. Charles E. Schumer

Hon. Richard J. Durbin

Hon. Sheldon Whitehouse

Hon. Amy Klobuchar

Hon. A1 Franken

Hon. Christopher Coons

Hon. Richard Blumenthal

Minority:

Hon., Charles E. Grassley, Ranking Member

Hon. Otrin G. Hatch

Hon. Jeff Sessions

Hon. Jon Kyi

Hon. Lindsey O. Graham

Hon. John Comyn

Hon. Mike Lee

Hon. Tom Coburn

721

United States Senator

Susan M. Collins

Press Release

For Immediate Release Contact: Kevin Kelley/Liz Johnson

May 4, 2011 202-224-2523

Statement of
Senator Susan Collins

Nomination of Nancy Torresen for U.S. District Judge for Maine
Committee on the Judiciary
May 4, 2010

★ ★ ★

Our judicial system, one of the three equal branches of our government, is charged with ensuring equal
justice under law, a pillar of our democracy. Whom we appoint to these judicial positions is as important as
whom we elect.

Nancy Torresen, the nominee to be the U.S. District Court Judge for Maine, is eminently qualified to be
confirmed as U.S. District Judge for Maine. She has led an exemplary career of public service culminating in
her current position as Assistant U.S. Attorney.

Ms. Torresen graduated from Hope College with a B.A. cum laude in 1981 and received her J.D. cum
laude in 1987 from the University of Michigan Law School. She began her legal professional career in 1987
when she served as a law clerk to the well-respected Maine Judge Conrad Cyr. From 1988 to 1990, she worked
at the law firm Williams and Connolly here in Washington.

In 1990, she became an Assistant U.S. Attorney for the District of Maine where she initially handled
civil matters involving federal agencies. In 1994, she was assigned to the Appellate Section of the Criminal
Division of the Maine Attorney General where she was primarily responsible for representing the State in
appeals of serious violent crime convictions. In 2001, Ms. Torresen returned to the U.S. Attorney’s Office
where she has been responsible for investigating and prosecuting federal crimes in the northern half of Maine.

In conversations with Ms. Torresen, I became convinced of her dedication and passion for the law and
appreciated her 21 -year long commitment to public service. She has remarked that she is proudest of her
criminal prosecution efforts because of the urgent need to protect the public from violent criminals and her
desire not to let down the victims of violent crime.

One of her more significant cases was the recent prosecution of the multi-state bank robber dubbed the
"burly bandit." From April through July, Robert Ferguson robbed more than 10 banks and credit unions
throughout New England. The spree ended with a robbery at the Bangor Savings Bank on July 13, 2010. On
October 1, 2010, Mr. Ferguson pleaded guilty in United States District Court in Bangor to 1 1 counts of bank
robbery. Ms. Torresen was recognized by U.S. Attorney Delahanty for her work that was “instrumental in
coordinating the prosecution in the six states.”

Except for a brief stint in private practice, Ms. Torresen’ s entire career has been as a dedicated public
servant. She is well respected in the legal community and was rated “unanimously well-qualified” by the

American Bar Association. One of her colleagues in the Maine legal community, Tim Woodcock, remarked to
me that he views her as “highly professional, extremely capable, tough, but fair and is a strong advocate for the
adherence by law enforcement to all legal requirements.”

These are all qualities that we should look for in our judicial nominees. I am pleased to say that Ms.
Torresen’s work as a prosecutor in both the federal and state judicial systems, her integrity, her temperament,
and her respect for precedent make her well qualified to serve as Maine’s next federal judge. I note too that Ms.
Torresen, if confirmed, would be the first woman to serve as District Judge for Maine. Maine has a history of
superb federal judges, and I believe that Ms. Torresen will continue that tradition if confirmed.

723

Committee on the Judiciary

NEW YORK

CITY BAR

ELIZABETH DONOGHUE

CHAIR

15 Maiden Lane, 17™ Floor
New York, NY 10038
Phone; (212) 349-3000
Fax; (212)587-0744
edonoghue@hmgdjIaw.com

PETER M. KOUGASIAN
VICE CHAIR

80 Centre Street, Room 624
New York, NY 10013
Phone: (212)815-0495
Fax;{212)815-0498
pkougasian@spccnarc.org

STEPHEN S. MADSEN

VICE CHAIR

825 Eighth Avenue, 41 st Floor
New York, NY 10019
Phone: (2 12) 474-1886
Fax:(212)474-3700
smadsen @cravath. com

MIRIAM M. BREIER
Secretary

1 56 Fifth avenue, Suite 600
New York, New York 10010
Phone: (212) 791-3900
Fax: (646) 649-9650
mmb@bdulaw.com

STEPHANIE G. WHEELER

Secretary

125 Broad Street

Nfw York, NY 10004

Phone: (212) 558-7384

Fax: (2 12) 291-9166

wheelcars@sullcrom.com

ELIZABETH DORFMAN

ADMINISTRATIVE ASSISTANT

42 W. 44 th Street
New York, NY 10036
Phone: (212)382-6772
Fax: (2 12) 869-2145
cdorfman@nycbar.org

April 27,2011

Bruce Cohen, Esq.

Chief Counsel

The Honorable Patrick J. Leahy
433 Russell Senate Office Building
Washington, D.C. 20510

Dear Mr. Cohen:

We are pleased to inform you that the Committee on the
Judiciary of the New York City Bar has found William F. Kuntz, II,
Esq., APPROVED for appointment to the United States District
Court for the Eastern District of New York.

Very truly yours,

Chair

The Association of the Bar of the City of New York
42 West 44* Street, New York, NY 10036-6689 www.nycbar.org

724

Statement of Senator Chuck Grassley
Before the Committee on the Judiciary
On the Nominations of:

John A. Ross, to be United States District Judge for the Eastern District of Missouri
Timothy M. Cain, to be United States District Judge for the District of South Carolina
Nannette J. Brown , to be United States District Judge for the Eastern District of Louisiana
Nancy Torresen, to be United States District Judge for the District of Maine
William F. Kuntz, II, to be United States District Judge for the Eastern District of New York

May 4, 2011

Mr. Chairman:

I extend my welcome to the nominees appearing before us today, each nominated to be a United
States District Judge. I also welcome their families and friends. Their qualifications and
backgrounds have been thoroughly vetted and reviewed. Today Committee Members and the
public get to hear directly from them. So 1 welcome you all here, and look forward to the
testimony. I will insert my full statement into the record.

John Ross is nominated to be United States District Judge for the Eastern District of Missouri.
Mr. Ross received his B.A. from Emory University in 1976 and his J.D. from Emory School of
Law in 1979. He began his legal career with the St. Louis County Prosecuting Attorney’s
Office. In 1986, he was appointed Assistant Chief Trial Attorney, handling more complex and
serious felony cases. From 1991 to 2000, Mr. Ross served as County Counselor for St. Louis
County. In January 2000, Mr. Ross was appointed by the Governor as a Circuit Judge, where he
has served since that time. He was retained by the voters of Missouri in 2002 and 2008. The
American Bar Association has rated Mr. Ross “Well Qualified.”

Timothy Cain is nominated to be United States District Judge for the District of South Carolina,
Judge Cain received his B.A. from the University of South Carolina in 1983, and his J.D. from

725

University of South Carolina School of Law in 1 986. Following law school. Judge Cain served
as a part time Assistant Public Defender with the Oconee Defender Corporation and as an
Associate with Miley & Mccaulay. From 1 988 to 1 990, Judge Caine served as Assistant
Solicitor General for the Solicitor’s Office of the Tenth Judicial Circuit where he represented
South Carolina in prosecutorial matters. Judge Cain entered private practice again in 1 990 as an
Associate with Brandt & Fedder, which later became Brandt, Fedder, Graham & Cain when he
made Partner. In 1992, the County Supervisor appointed Judge Cain as County Attorney for
Oconee County. From 1 996 to 2000, he served as Partner of Ballenger, Fedder, Cain and
Norton, L.L.P., which later became Fedder, Cain, and Norton, L.L.P. In 2000, the South
Carolina General Assembly elected Judge Cain to serve as a Family Court Judge in the Tenth
Judicial Circuit. The General Assembly re-elected him in 2004 and 2010. In 2005, the Chief
Justice of the South Carolina Supreme Court appointed Judge Cain to serve as the Chief
Administrative Judge for the Family Court of the Tenth J udicial Circuit. By designation of the
Chief Justice, Judge Cain also served as an Acting Associate Justice for the South Carolina
Supreme Court on several occasions. The American Bar Association has rated Judge Cain
“Qualified.”

Nannette J. Brown is nominated to be United States District Judge for the Eastern District of
Louisiana. Ms. Brown received a B.A. from the University of Southwestern Louisiana in 1985, a
J.D. and an L.L. M from Tulane Law School in 1988 and 1998, respectively. From 1988 to
1992, Ms. Brown worked at Adams & Reese. From 1992 to 1994 she served as a Teaching
Fellow at Tulane Law School. From 1994 to 1996, she worked as the Director of Sanitation for
New Orleans. From 1996 to 2010, Ms. Brown practiced with mid-to large firms defending
public bodies, railroads, businesses, and individuals. Ms. Brown has also taught a number of
legal courses at Southern University Law Center. She has served on the Louisiana Hurricane
Mediation Program and was a founding member of the Loyola University of New Orleans
College of Law Mediation Clinic. On May 3, 2010, she was appointed City Attorney for the
City of New Orleans. The American Bar Association has rated Ms. Brown “Qualified.”

Nancy Torresen is nominated to be United States District Judge for the District of Maine. Ms.
Torresen received a B.A. from Hope College in 1981 and a J.D. from the University of Michigan

2

726

School of Law in 1987. She began her legal career as a law clerk with the Honorable Conrad K.
Cyr, of the United States District Court for the District of Maine. In 1988, she joined Williams
and Connolly as an Associate. Since 1990, Ms. Torresen has served as an Assistant United
States Attorney. From 1990 to 1994, she served in the U.S. Attorney’s Office in Maine. From
1994 to 2001, the Department of Justice detailed Ms. Torresen to the Maine Department of the
Attorney General Criminal Division in the Appellate Section. In 2001, Ms. Torresen returned to
the District of Maine, serving in the Criminal Division. The American Bar Association has rated
Ms. Torresen “Well Qualified.”

William Kuntz, II is nominated to be United States District Judge for the Eastern District of New
York. Mr. Kuntz received his B.A. from the Harvard College in 1972, and an M.A. from
Harvard University in 1974. He earned his J.D. in 1977 and a Ph.D. in American Legal History
in 1979 through a joint program at Harvard University. Following law school, he entered into
private practice, first with Shearman and Sterling. Since 1 986, he has been a partner with a
number of firms focusing on commercial litigation. Mr. Kuntz was appointed, and subsequently
reappointed by New York Mayors Koch, Dinkins, Giuliani and Bloomberg to serve on the New
York City Civilian Complaint Review Board from 1987 through 2010. Mr. Kuntz has also
taught courses in American Legal History at Brooklyn Law School. The American Bar
Association has rated Mr. Kuntz “Well Qualified.”

3

727

Committee on the Judiciary
United States Senate
"Nominations"

May 4, 2011

Senator Chuck Schumer

Introduction of William F. Kuntz, II, Nominee to the U.S. District
Court for the Eastern District of New York

Mr. Chairman, thank you for the opportunity to introduce Dr, William F. Kuntz II to the
committee today.

I have no doubt that you and my other colleagues on the committee will be just as impressed as I
have been with Dr. Kuntz - he has exactly the skills, temperament, and experience to be a perfect
addition to one of the busiest United States District Courts in the country.

Dr. Kuntz, currently a partner in the New York office of Baker Hostetler, is a native of Harlem.
He grew up in what was then called the Polo Grounds Projects (now the Rangel Projects) and
went to high school at Fordham Prep in the South Bronx.

He earned his undergraduate degree from Harvard University, followed by a masters degree in
history, followed by a law degree and a Ph.D. in American legal history — all from Harvard, and
all within 1 1 years of arriving in Cambridge.

I would venture that throughout this country. Dr. Kuntz has few peers in terms of education and
training. But Dr. Kuntz did not use his degrees to go on to teach and write - a valuable career
path, to be sure, but possibly, not one that would have put his skills as an advocate and his
commitment to the people of New York to their highest and best use.

Instead, Dr. Kuntz went on to log 33 years of litigation experience at some of New York City’s
finest law firms. Moreover, he served for 23 years as a commissioner on the city’s Civilian
Complaint Review Board.

This independent agency oversees the investigation of citizens’ claims of misconduct by New
York City police officers. By all accounts. Dr. Kuntz has staked out an admirable middle ground
that is informed by hard investigative work and careful consideration of all of the 5,000 cases
that come before the Board every year.

In private practice, some of his most notable cases have included recovering money from those
who steered clients to Bernard Madoff, and recovering assets from the indicted Wedtcch
company.

Dr. Kuntz’s commitment to public service is long and impressive. He has served in leadership
positions on the Lawyers’ Committee for Civil Rights Under Law, the Legal Aid Society of New
York, the New York City Bar, and the Practicing Law Institute - among others.

728

Mr. Chairman, I sincerely hope that we can move Dr. Kuntz’s nomination along as quickly as
possible. He would fill a judicial emergency vacancy in the Eastern District of New York, a
court that adjudicates a large share of critical cases such as terrorism and terrorist financing,
organized crime, and mortgage fraud. Dr. Kuntz is sorely needed, and more than up to the task.

Like my colleagues, I look forward to Dr. Kuntz’s testimony here today, and to his service on the
bench.

NOMINATIONS OF STEVE SIX, NOMINEE TO
BE U.S. CIRCUIT JUDGE FOR THE TENTH
CIRCUIT; MARINA GARCIA MARMOLEJO,
NOMINEE TO BE U.S. DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF TEXAS; MI-
CHAEL C. GREEN, NOMINEE TO BE U.S. DIS-
TRICT JUDGE FOR THE WESTERN DISTRICT
OF NEW YORK; WILMA ANTOINETTE LEWIS,
NOMINEE TO BE JUDGE FOR THE DISTRICT
COURT OF THE VIRGIN ISLANDS; MAJOR
GENERAL MARILYN A. QUAGLIOTTI, USA
(Ret.), NOMINEE TO BE DEPUTY DIRECTOR
FOR SUPPLY REDUCTION, OFFICE OF NA-
TIONAL DRUG CONTROL POLICY

TUESDAY, MAY 24, 2011

U.S. Senate,

Committee on the Judiciary,

Washington, DC.

The Committee met, pursuant to notice, at 2:33 p.m., Room SD-
226, Dirksen Senate Office Building, Senator Amy Klobuchar, pre-
siding.

Present: Senators Grassley, Cornyn, and Lee.

OPENING STATEMENT OF HON. AMY KLOBUCHAR, A U.S.

SENATOR FROM THE STATE OF MINNESOTA

Senator Klobuchar. I am pleased to call this nominations hear-
ing of the Senate Committee on the Judiciary to order, and pleased
to have our Ranking Member, Senator Grassley, here. I want to
thank Chairman Leahy for allowing me to chair this hearing. As
you know, we’re starting on time.

I want to give a warm welcome to all of our nominees. We also
welcome the family and friends that have accompanied all of you.
You will have an opportunity to introduce them shortly.

First, I would like to call upon Senator Cornyn, a member of this
Committee, to introduce Marina Garcia Marmolejo, who is nomi-
nated to be a District Judge for the Southern District of Texas, and
I would also like to welcome the Virgin Islands delegate, Congress-
woman Donna Christensen, to introduce Wilma Lewis, who is nom-
inated to serve on the U.S. District Court of the U.S. Virgin Is-

( 729 )

730

lands. Thank you, Senator Cornyn and Congresswoman
Christensen, for appearing today. Please feel free to excuse yourself
when you’re done; I know you have busy schedules.

Senator Cornyn.

PRESENTATION OF MARINA GARCIA MARMOLEJO NOMINEE

TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT

OF TEXAS PRESENTED BY HON. JOHN CORNYN, A U.S. SEN-
ATOR FROM THE STATE OF TEXAS

Senator Cornyn. Well, thank you, Madam Chairman, Senator
Grassley. It is my pleasure to speak on behalf of the nomination
of Marina Marmolejo, who is here with her husband in the front
row, and to support her nomination as U.S. District Judge for the
Southern District of Texas in Laredo.

Ms. Marmolejo applied for this position and was screened by a
bipartisan Federal Judicial Evaluation Committee appointed by
Senator Hutchison and myself. Senator Hutchison and I inter-
viewed her and recommended her to President Obama, and are
pleased that she comes to this Committee as a consensus nominee.
Based on her broad experience and commitment to public service,
I believe she’ll make an outstanding addition to the Federal bench
in Texas.

Born in Nueva Laredo, Mexico and naturalized as a U.S. citizen,
Ms. Marmolejo’s professional accomplishments are a testament to
her determination and hard work. After graduating from the Uni-
versity of the Incarnate Word in my home town of San Antonio,
Ms. Marmolejo went to receive her Master’s and law degree from
another alma mater of mine, St. Mary’s University School of Law.

She consistently set the standard throughout her academic ca-
reer, completing each degree program with honors and serving as
an associate editor on the St. Mary’s Law Journal. Following law
school, she demonstrated a strong commitment to public service,
first as an assistant public defender from 1996 to 1999, where she
worked to ensure that the indigent and vulnerable defendants re-
ceived their constitutional right to a fair trial.

In that capacity she appeared in 350 cases before Federal Dis-
trict Courts in both the Southern and Western Districts of Texas.
Her work as a public defender was so impressive that in 1999 she
was recruited to serve as an Assistant U.S. Attorney for the South-
ern District. In her role as a Federal prosecutor, she spent the next
8 years handling over a thousand cases that brought dangerous
criminals to justice, such as human traffickers and drug smugglers,
gun runners, and gang members. Clearly, Ms. Marmolejo’s experi-
ence fighting these scourges will suit her well given the Southern
District’s proximity to the increasingly dangerous U.S. -Mexico bor-
der.

As a prosecutor, Ms. Marmolejo has also worked to ensure that
our elected officials lived up to the highest ethical standards, pros-
ecuting multiple public corruption cases. For her work in one high-
profile case she earned the prestigious Director’s Award for her su-
perior performance as an Assistant U.S. Attorney, one of the high-
est honors available to career Federal prosecutors.

She also won the attention of her superiors for her intricate
knowledge of the criminal justice system and her prosecutorial tal-

731

ents. She was repeatedly recruited by the Department of Justice’s
Overseas Prosecutorial Development Assistance and Training Pro-
gram to teach trial advocacy to foreign prosecutors and agents in
Colombia and the Dominican Republic.

In 2007, she went into the private practice of law with the firm
Thompson & Knight in San Antonio. In 2009, she joined Diamond
McCarthy, LLP as of counsel, and became a partner later that
year. She is now a partner in the Reid Collins Tsai law firm based
in Austin.

So you can see from her vast experience and her public service
that Ms. Marmolejo is well qualified. She has also received wide-
spread applause from the community. For example, the Laredo
LULAC Council has recognized with its Tejano Achiever’s Award,
and the Nueva Laredo Rotary Club has similarly awarded her serv-
ice to the community.

So while I could continue to offer additional praise for Ms.
Marmolejo’s career and her character, the record is already clear.
I believe she will probably serve as a Federal District Judge, so I
would urge my colleagues to join Senator Hutchison and me in sup-
porting Ms. Marmolejo’s well-deserved nomination.

Thank you.

Senator Klobuchar. Thank you very much, Senator Cornyn.

Congresswoman Christensen, I will warn you, you may not be
able to match him for having his nominee rhyme with her place of
residence, Marmolejo of Laredo. It almost rhymes. I kind of liked
it.

Ms. Christensen.

PRESENTATION OF WILMA ANTOINETTE LEWIS, NOMINEE TO

BE JUDGE FOR THE DISTRICT COURT OF THE VIRGIN IS-
LANDS PRESENTED BY HON. DONNA M. CHRISTENSEN, A U.S.

REPRESENTATIVE FROM THE U.S. VIRGIN ISLANDS

Representative Christensen. Thank you, Madam Chair and
Ranking Member Grassley, for the opportunity to introduce the
Hon. Assistant Secretary Wilma A. Lewis, President Obama’s
nominee to serve as the next District Court Judge in the U.S. Vir-
gin Islands.

As the daughter of the first native Virgin Islands judge of our
District Court, it is an honor to introduce an exceptional woman
and public servant who, with your confirmation, would create an-
other judicial milestone, as she would become the first woman to
serve as a Federal judge in the District Court of the U.S. Virgin
Islands.

Assistant Secretary Lewis would bring an extensive, varied, and
broad wealth of experience from both the public and private sector
to the District Court of the U.S. Virgin Islands. We are so very
proud of her record of distinguished service and know that any
number of other Federal judicial districts would have vied to have
her bring her level of expertise to them, and many would have
wanted to have the honor and privilege that I have to introduce her
to you today.

I know her as a devoted daughter of parents who themselves
gave a collective 67 years of service to the Federal Government, her

732

father Walter Lewis in the U.S. Postal Service, and her mother
Juta Lewis in what was then the U.S. Customs Service.

We are both active members of the Moravian church that played
an important role in bringing equity and justice to the enslaved Af-
ricans they came to live among back in the early 1700s.

I know that you have her outstanding resume, but she has
served the District of Columbia and our Nation in some of the most
demanding local and Federal positions of government. Her tenures
in those offices are of immense pride to the people of the U.S. Vir-
gin Islands and I would not be able to go back home if I did not
at least mention some of the more important ones as I present her
to you today.

In 2009, President Obama and Interior Secretary Ken Salazar
called upon Attorney Lewis’ vast expertise to serve as the Assistant
Secretary for Lands and Minerals Management at one of the most
challenging times for that agency. She previously served as Inte-
rior’s Inspector General, and earlier as an Associate Solicitor in the
General Law Division.

Assistant Secretary Lewis served the U.S. Department of Justice
as the U.S. Attorney for the District of Columbia, as well as on sev-
eral key boards, committees, and commissions, including the Judi-
cial Nomination Commission and the Committee on Local Rules of
the U.S. District Court for the District of Columbia.

Attorney Lewis has also had significant experience in the private
sector. Madam Chair and Ranking Member, throughout her life,
Wilma A. Lewis has distinguished herself at every turn, in college,
in law school, and in the coveted legal position she had held and
executed with honor, distinction, and excellence.

She was the valedictorian of her All Saint’s Cathedral High
School in 1974, graduated with honors from Swathmore in Political
Science in 1978, and from Harvard Law School in 1981. She was
featured in the 2003 Harvard Law Bulletin as among the 50 female
graduates who used their legal education to take them to extraor-
dinary places, and has been recognized and honored by many orga-
nizations in the Virgin Islands and across the U.S. mainland.

Although the nominee has spent most of her professional life on
the United States mainland, she has maintained close and contin-
uous contact with her home through the church, several community
organizations, and of course through her ties to family and friends.
The Virgin Islands Bar Association unanimously voted her as the
Most Qualified and recommended her highly for this position.

We’re asking that this body, in confirming this outstanding indi-
vidual, give her the opportunity to do what has always been her
dream: to use all of the experience and skill she has accumulated
over the years of service to serve her beloved home.

Thank you for the opportunity again to present this outstanding
individual and nominee for the District Court of the U.S. Virgin Is-
lands.

Senator Klobuchar. Well, thank you, Congresswoman
Christensen. Thank you for joining us today.

I would also like to note that Senators Schumer and Gillebrand
were not able to make it today, but they have submitted remarks
for our nominee, Michael Green. These statements will be sub-
mitted to the record.

733

[The prepared statements of Senators Schumer and Gillebrand
appear as a submission for the record.]

Senator Klobuchar. I believe that Senator Hutchison is going to
be joining us shortly. Before Senator Grassley gives an opening
statement, I would like to introduce the rest of our nominees.

Steve Six has been nominated to serve on the U.S. Court of Ap-
peals for the Tenth Circuit. Currently he is a partner at the Kan-
sas law firm of Stevens & Brand. He is also a research scholar with
Columbia University Law School’s State Attorney General pro-
gram. Mr. Six previously served as the Kansas Attorney General,
and he even has experience living in Minnesota. I knew you would
be interested in that, Senator Grassley. He graduated from Carlton
College in Northfield, Minnesota, before attending the University of
Kansas School of Law.

Michael Green has been nominated to sit on the U.S. District
Court for the Western District of New York. Currently, the District
Attorney for Monroe County, New York, Mr. Green was previously
Assistant District Attorney for Monroe County and an associate at
the Morris & Morris law firm in Rochester, New York. Mr. Green
attended LeMoyne College and received his J.D. from Western New
England College School of Law.

Last, but certainly not least, we have Major General Marilyn
Quagliotti. General Quagliotti has been nominated to be Deputy
Director for Supply Reduction in the Office of National Drug Con-
trol Policy. Wow, that’s a long title! She is currently a management
consultant with the Durango Group, and she had a long and distin-
guished career in the U.S. Army, serving for over 30 years. Wel-
come, General Quagliotti.

Now I’m going to turn it over to Senator Grassley for any open-
ing remarks he would like to make.

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR
FROM THE STATE OF IOWA

Senator Grassley. I extend my welcome to the nominees appear-
ing before us today. I also welcome their family and friends, and
I know you’re proud of your family and friends that are being nom-
inated for these prestigious positions.

I’m eager to hear testimony and I’ll be asking many questions.
I expect the nominees will fully answer my questions. Too often,
nominees appear before us and fail to give meaningful responses.
Unfortunately, a well-worn response that we get to questions,
meant to have questions of substance, we too often hear, “I will fol-
low the law, if confirmed”. That type of response, which sounds
coached, even robotic at times, doesn’t really get us very far with
understanding the competence, integrity, and temperament of a
particular nominee. It certainly gives us no insight into the thought
process, legal reasoning skills, or general judicial philosophy of the
nominee.

I am going to insert the rest of my statement in the record be-
cause it’s very long. So, I’ll yield the floor.

[The prepared statement of Senator Grassley appears as a sub-
mission for the record.]

Senator Klobuchar. OK. Thank you.

734

I will now ask our first nominee, Mr. Steve Six, to come forward
and remain standing and raise your right hand. I’ll administer the
oath.

[Whereupon, the witness was duly sworn.]

Senator Klobuchar. Thank you. Have a seat.

Mr. Six, do you want to take a moment to introduce anyone who
is with you here today at this hearing?

STATEMENT OF STEVE SIX, NOMINEE TO BE U.S. CIRCUIT
JUDGE FOR THE TENTH CIRCUIT

Mr. Six. I do. Thank you, Senator Klobuchar, for that kind intro-
duction, and Senator Grassley, for those welcoming remarks. Intro-
ducing my family who is with me here today supporting me, I’ll
start with my wife Betsy. My wife of 15 years. Going in age from
the oldest, my daughter Emily Six, Sam Six, Henry Six, and Will
Six. And I’m also fortunate to have my parents, retired Supreme
Court Justice — Kansas Supreme Court Justice Fred Six here, and
my mother, Lillian Six. Thank you all.

Senator Klobuchar. That’s almost six Sixes.

[Laughter.]

Senator Klobuchar. That’s very good.

Mr. Six. I do thank the Committee for allowing me to have this
hearing today, and look forward to your questions.

Senator Klobuchar. Well, very, very good. I have a few ques-
tions. I know it sounds like Senator Grassley has some questions
as well.

Could you talk about how you describe your judicial tempera-
ment and why you think you’d make a good judge?

Mr. Six. Well, thank you for that question, Senator. In my past
work experience, I had the honor of serving as a State judge in our
Kansas system and the approach that I took in that position was
to really try to show up every day and work hard on being fair, to
be independent, and to do what sounds kind of trite, but to impar-
tially apply the law as I saw it to the facts that appeared before
me. That’s the judicial philosophy I practiced for the time I was a
State court judge, and what I’d hope to do if I was fortunate
enough to be confirmed to this position.

Senator Klobuchar. Thank you. And has your father passed
along any ideas to you?

Mr. Six. Well, he has been very influential in my life, certainly
in a lot of ways. I don’t know that there’s any particular judicial
lessons he’s passed on. It’s been more certainly ethics, integrity,
how do you present yourself, what does your word mean when you
give it to someone, and really how to practice law in, I think, a
very gentleman-like or professional fashion.

Senator Klobuchar. So going to the Circuit Court, if you’re con-
firmed, is a little different than being a District Court judge or a
State Court judge, as you will be working with many judges, active
senior judges. And do you think it’s important to seek out agree-
ment with your colleagues? Is there value to finding common
ground, even if it slightly narrower in scope, to get a unanimous
opinion? What are your views on that?

Mr. Six. Well, I think what I’ve learned over my legal career,
both in the private sector and public sector, is that it’s important

735

in the law to have a vigorous debate about what you believe a stat-
ute may be or what the cases say about the law or the precedents.
Whether you’re doing that with lawyers in private practice or, as
I did when I questioned lawyers when I was a judge, you can have
that vigorous debate but still when you’re done be civil and get
along.

And certainly I would anticipate, if I was fortunate enough to be
confirmed, that I would have a vigorous debate with my colleagues
on a panel, respecting other views, listening to other views. But at
the end of the day, you need to make your own decisions and hold
true to what your principles or beliefs are in the law that you’ve
studied.

Senator Klobuchar. Thank you.

Then last, Mr. Six, as Kansas Attorney General you played a role
in, or commented on, many high-profile matters, like prosecuting
child pornographers. As a former prosecutor, I know that that is —
I believe it’s very useful experience. How do you think that will
play into your background as you look to the Circuit Court judge-
ship?

Mr. Six. Well, as — as someone with young children, when I was
Attorney General, one of the priorities that soon came to my atten-
tion was the dangerous that young children are facing online in
various ways through all kinds of activity. That certainly was a pri-
ority and, when you’re working hard for something that you think
and believe in, it’s sort of like not even going to work in the day
because you enjoy the work so much. You know, that was impor-
tant work to me in those positions.

And, you know, I advocated for a lot of things as Attorney Gen-
eral, but I certainly recognized that there’s a difference in our foun-
dation and form of government in the separation of powers between
someone’s role in the executive branch, and certainly the judicial
branch.

Senator Klobuchar. Well, thank you.

And before I turn to Senator Grassley and Senator Lee for their
questions, we’re going to take a little break as Senator Hutchison
is here to speak for Ms. Marmolejo of Laredo.

PRESENTATION OF MARINA GARCIA MARMOLEJO, NOMINEE

TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT

OF TEXAS, PRESENTED BY HON. KAY BAILEY HUTCHISON, A

U.S. SENATOR FROM THE STATE OF TEXAS

Senator Hutchison. Thank you, Madam Chairman, very much.
I appreciate it. I was in another hearing, and when I got word that
you all were ready I raced over. So, thank you, because I am
pleased to be here to introduce Marina Garcia Marmolejo. She has
been nominated to serve as a District Judge for the Southern Dis-
trict in Laredo, Texas. This is a bench that needs all hands on
deck. It’s got a heavy, heavy caseload, and so we are looking for
her confirmation as expeditiously as possible.

She received a Bachelor of Science degree in English at the Uni-
versity of the Incarnate Word in San Antonio, where she graduated
magna cum laude. She went on to graduate from St. Mary’s Uni-
versity with a Master of Arts degree in International Relations,

736

and then received her Juris Doctorate from St. Mary’s University
School of Law.

She was born in Nueva Laredo, Mexico, but grew up going to
school in Laredo, Texas and learned very early the value of a
strong education. She became a U.S. citizen in 1995. She’s married
to Wesley Boyd and has two children, Natalia, age 10, and Nicolas,
age 8. Since completing her studies, she served as a substitute
teacher in Laredo, and after law school served as an Assistant Fed-
eral Public Defender for 3 years, where her performance was con-
sistently rated as substantially exceeding expectations.

In 1999, she became an Assistant U.S. Attorney in the Southern
District of Texas, where she worked for 8 years and handled over
1,000 cases. In 2002, the Department of Justice awarded her the
prestigious Director’s Award for superior performance as Assistant
U.S. Attorney for her work with several public corruption cases.

In 2007, she went with the firm of Thompson & Knight in San
Antonio, and now is a partner at Reed, Collins & Sigh. In 2010, she
was named by Hispanic Business Magazine one of the top 100 in-
fluential Hispanic leaders. In 2011, Super Lawyers named her a
Texas Rising Star. She has a solid understanding of the law and
a strong reputation in this South Texas community.

I believe she is well qualified to handle the daily challenges of
being a Federal judge and look forward to working for her con-
firmation.

Thank you very much for letting me intervene and show my sup-
port for Ms. Marmolejo.

Senator Klobuchar. Well, thank you very much, Senator
Hutchison. I’m aware of those heavy caseloads in Texas, so I’m glad
that this has moved along and that this nomination has been
made. Appreciate it.

Senator Hutchison. Thank you.

Senator Klobuchar. Senator Grassley.

Senator Grassley. Mr. Six, I understand you have the support
of two Republican Senators from your State. I congratulate you on
that.

I have some questions, as I indicated. When you were appointed
Attorney General in 2008, there was an ongoing controversy re-
lated to the investigation of Dr. Tiller and the Planned Parenthood
Clinic and the allegations that they were performing illegal, late-
term abortions. Your predecessor closed the investigation and
wrote Planned Parenthood a letter, stating that no charges would
be filed. The District Attorney continued to pursue charges.

According to media reports, you refused to reopen the investiga-
tion even though Judge Anderson testified that there were discrep-
ancies in the Planned Parenthood medical records, and that those
discrepancies raised “substantial, factual and legal issues about
their competence within the law”.

My first question: if you were aware of Judge Anderson’s con-
cerns about the medical records prior to making your decision, why
didn’t you reopen the investigation?

Mr. Six. Well, thank you for that question, Senator. As you men-
tioned, prior to me being appointed Attorney General we had had
a period going back to two prior Attorney Generals where the issue
you were talking about had been vigorously engaged in a back-and-

737

forth between them. We had an Attorney General that then re-
signed. When I was appointed, I stepped into some of those chal-
lenging issues. There certainly weren’t any issues that I sought
out, but tried to handle them in the most professional way that we
could.

We had Assistant Attorney Generals who were working on the
case. And like all criminal cases, as the Attorney General, I have
a Criminal Division and prosecutors who handle the cases. I don’t
in any case in our Criminal Division tell the prosecutors what I
think they should do or not do. They’re given their ethical duties
and responsibilities and instructed to seek a conviction for charges
that they believe evidence supports. For all the cases we handled
in the Attorney General’s Office, that’s what I did.

Senator Grassley. Well, where

Mr. Six. And the issues

Senator Grassley. Were you aware of Judge Anderson’s concerns
prior to making your decision?

Mr. Six. Well, there was never a decision on my part to pursue
or not pursue that case. It simply wasn’t something that was going
on. The different

Senator Grassley. Were you

Mr. Six. The different cases, including the prosecution of George
Tiller, was going on. That continued after I became Attorney Gen-
eral and there were various issues that went up to our Kansas Su-
preme Court on sensitive medical records. We continued to bring
those to the attention of the Supreme Court because they had pre-
viously entered instructions for us about how we were to handle
those records, and we were very sensitive about that because the
prior Attorney General is before the disciplinary board of our State
now and has been sanctioned in limited ways by our Supreme
Court over various activities relating to that. So I was very sen-
sitive to always bring it to the court and let the court make the
decisions.

Senator Grassley. Were you ever subject to any pressure or
communication with the Governor of the State or anybody in the
administration not to pursue charges against Planned Parenthood?

Mr. Six. The Governor at the time I took office was now Sec-
retary Sebelius, and I never had a discussion with her about any
topics or any cases in the Attorney General’s Office in our Criminal
Division. We would occasionally brief her on cases before the State.
We had a lottery case

Senator Grassley. You’ve answered my question. That’s OK.

Mr. Six. Thank you.

Senator Grassley. While your office refused to continue the in-
vestigation of Planned Parenthood, Mr. Phil Kline, who was Dis-
trict Attorney and former Attorney General, continued the case.
Did you ever seek to impede his prosecution of Planned Parent-
hood?

Mr. Six. Again, when I took office this litigation had been going
on for some period of time. The judge you mentioned had pre-
viously testified in a hearing overseen by our Kansas Supreme
Court before I became Attorney General. The case you’ve just ref-
erenced, the judge received a subpoena to appear in District Court
and testify. When any judge in the State is subpoenaed or re-

738

ceives — is sued, they contact the Attorney General’s Office for rep-
resentation.

In this case, that is what happened. Given the sensitive nature
of the case I thought it would be best to apply outside counsel out-
side of the office to him. He, under our procedure, got his own at-
torney and the matter was referred again to our Kansas Supreme
Court. The Kansas Supreme Court then issued orders about what
the judge should and shouldn’t do, and that was the appropriate
forum, I thought, for how it should be handled.

Senator Grassley. Is that your answer then also to why did you
continue to have legal action to compel Mr. Kline to return all doc-
uments that he retained from the investigation in the Attorney
General’s Office?

Mr. Six. Again, the medical records, these private patient med-
ical records, were the subject of an order by the Kansas Supreme
Court about how they were supposed to be handled. When Mr.
Kline left office, he took the entire file and the records with him
on the morning he left office. Then another Attorney General, At-
torney General Morrison, went into office and he started a case to
get those materials returned. That started sometime in January of

2007.

I became Attorney General in February of 200 — or January 30,

2008. And at the time I became Attorney General, my name was
substituted into the caption where the previous Attorney General’s
name had been. The court ordered that the lawyers show up for
oral argument. An Assistant Attorney General from my office
showed up and argued the case and again said that these patient
records should be redacted to remove identifying information and
they should be managed in a secure law enforcement way and put
the matter before the Supreme Court.

Senator Grassley. The case brought against Planned Parent-
hood relied in part on Kansas’ late-term abortion law. Recently
Kansas amended their abortion law to bar abortions at 22 weeks
gestation, except to save the mother’s life. Do you believe that the
Kansas law is consistent with the Supreme Court’s decision of
Planned Parenthood v. Casey, where the court said that abortion
restriction cannot impose “an undue burden’TA?

Mr. Six. You know, when I was Attorney General I did not evalu-
ate that issue. And since I’ve gone into private practice I haven’t
had any similar issues like that come out and I haven’t read the
Kansas statute. I simply haven’t studied it, Senator.

Senator Grassley. I think I’ll put the rest of the questions for
answer in writing.

[The questions appear under questions and answers.]

Senator Klobuchar. OK. Very good. Thank you.

Senator Lee.

Senator Lee. Thank you very much, Mr. Six, for joining us. I
have a special interest in the Tenth Circuit, in part because it in-
cludes my State. So, thank you for being with us today.

While you were serving as Attorney General of Kansas, 13 States
originally filed a lawsuit challenging the constitutionality of the Af-
fordable Care Act, also known as Obama Care, insofar as it relates
to the individual mandate aspect of that. It’s my understanding
that Kansas, after you left office, later became one of the now 26

739

States. Some of the original States included Florida, Michigan,
Pennsylvania, Washington, a whole host of others, including Utah.
Kansas has since joined then. A total of 60 — 26 States have joined
in on this, a majority of them — a majority of all States.

But when the question was presented to you as to whether or not
you wanted to sign documents getting your State involved in it, you
were quoted as saying “arguments have been advanced that the
law’s requirement that all individuals purchase health insurance is
unconstitutional. Under current U.S. Supreme Court precedent,
such an argument is highly unlikely to succeed”. Now, that litiga-
tion is still ongoing. We’ve had a couple of courts issue opinions
going a couple of different ways. But needless to say, it has proven
to be a complex issue, certainly not a straight up-or-down issue.

I was wondering if you could just talk to me briefly about kind
of what you had in mind, what precedent you were relying on in
saying that this is highly unlikely to succeed and that it would be
essentially a waste of taxpayer revenue to become involved in a
lawsuit.

Mr. Six. Yes. Thank you, Senator Lee. What I did with all issues
that appeared in the Attorney General’s Office, was they would
come in and we’d try to apply the best analysis we could. I don’t
know when in the course of time I made that statement, but, you
know, I assigned various claims, the six or so claims under the in-
dividual or employer mandate to lawyers in the office. They re-
searched them. They returned reports that we then reviewed. And
my opinion after that review was that the great majority of the
claims looked unlikely to succeed. I think that’s proven true per-
haps through all the courts, that maybe four of the claims have
uniformly been dismissed.

The other thing I did then on the individual mandate, which I
think was the most challenging aspect, was we reviewed it as to
the State Attorney General, because that’s the decision we’d been
making. Our analysis was that under the standing cases, that the
State Attorney General didn’t have the authority to pursue the in-
dividual mandate claim. And for those reasons, I thought that our
State, you know, given the limitations and the challenges we were
facing, had other cases and things that we were struggling to meet
the demands of, and for the resources that would be required to get
involved in that. You know, we decided not to, and ultimately my
view was it would go to an appellate court and the Supreme Court
and that would apply to our State anyway.

Senator Lee. So it was your conclusion that the State would lack
Article 3 standing or prudential standing in order to bring that?

Mr. Six. You know, I did not review what the conclusion was be-
fore appearing here today. I can just recall, as we analyzed it, as
it applied to the Attorney General bringing that claim, we didn’t
think we had standing.

Senator Lee. OK. But your recollection is that your analysis was
based on standing rather than on the merits position on the sub-
stantive legal outcome?

Mr. Six. The standing issue is what we felt like would be deter-
minative on the Attorney General bringing that. We knew that in
that case there were individual plaintiffs that may be advancing
the claim, and so if it was going to succeed it would apply to our

740

State. And, you know, the final reason really was that our — under
our Kansas statutes, the House or the Senate can pass a resolution
to have the Attorney General file a lawsuit and the House had that
resolution and they voted it down. And certainly we didn’t want to
be in a position where we were advancing a case that the House
and the people at least voted down as far as pursuing.

Senator Lee. Sure. Sure. But that wouldn’t affect your standing
analysis.

Mr. Six. No, not on a legal

Senator Lee. I mean, — has standing or he doesn’t.

Mr. Six. Correct.

Senator Lee. It seems odd to me that an Attorney General could
be thought not to have standing to challenge a law that requires
substantial investment on the part of the State to set up certain
infrastructure with all kinds of mandates that are not necessarily
funded, at least not directly to the States. But I understand that
to be your position.

Now, in response to the argument that the unfunded mandate re-
quiring the States to expand the eligibility standards for Medicaid,
or else, you know, in the alternative, lose risking — risk losing Fed-
eral funds. In response to an argument that that might violate the
State’s rights, the State’s Tenth Amendment rights, you argued, as
I understand it, that this was a policy argument, not a constitu-
tional argument. How can you defend that statement in light of
Prince v. United States and the acknowledge that the Federal Gov-
ernment cannot commandeer State executive or legislative machin-
ery in order to adopt or implement a Federal legislative or adminis-
trative program?

Mr. Six. Well, I don’t recall the context. I don’t dispute that I
made that statement and that it’s accurate. I don’t recall the con-
text of what I said at that time. And unfortunately, Senator, I
apologize, but I don’t know what the Prince case — I have not re-
viewed that.

Senator Lee. OK. But if — in light of that precedent, let’s just —
just take for a moment — I understand that you haven’t had an op-
portunity to review Prince, but that would make it a constitutional
argument as opposed to a policy argument, would it not?

Mr. Six. I would say that all of the arguments should be legal
arguments and would be decided in a court of law as opposed to
a policy. So that might have just been a loose statement on my
part. As you know, when you are in the time period we’re talking
about, I imagine that when I was campaigning for Attorney Gen-
eral, and you make a lot of statements all day all over the State,
I would agree that it is a legal argument on each of the claims that
have been advanced in the Florida lawsuit as to whether they are
constitutional or not constitutional, and those would not be policy
arguments.

Senator Lee. All right. I see my time has expired. Just as I
would do if I were arguing before the Tenth Circuit, I’ll yield the
floor.

Mr. Six. Thank you, Senator.

Senator Grassley. I have one more.

Senator Klobuchar. OK. One more thing, Senator Grassley.
Then I had a few follow-ups.

741

Senator Grassley. I’m going to — even though I asked you a lot
of questions about the Planned Parenthood case, I would ask you
to submit a full statement regarding your actions and involvement
with regard to that case. Then as a result of that, I may have fol-
low-up questions after I review your statement. Would you agree
to do that?

Mr. Six. Certainly, Senator.

Senator Grassley. Thank you.

Senator Klobuchar. Thank you. I’m sure I was listening to your
exchange with Senator Lee, and I would hope he would put that
question in writing so you’d have a chance to look at the case and
expand on that more after you have a chance to look at what you
said and what the case said.

Mr. Six. Thank you.

Senator Klobuchar. All right. Very good.

And I just want to confirm here, both Senator Moran and Sen-
ator Roberts, two Republican Senators, are supporting you for this
position?

Mr. Six. You know, I have had a conversation with Senator
Moran and I wouldn’t presume to

Senator Klobuchar. Well, they’ve allowed your nomination to go
forward. Let me put it that way.

Mr. Six. I am here today.

Senator Klobuchar. OK. Very good.

Senator Lee.

Senator Lee. Do we have time for one more round of questions?
I just wanted to follow up on a couple of issues.

Senator Klobuchar. Sure. I’m actually asking some now.

Senator Lee. Oh. Oh, great. OK.

Senator Klobuchar. I’m doing my second round and then that
would be great.

Senator Lee. Then I will follow you. OK. I just wanted to make
sure.

Senator Klobuchar. OK. Excellent. Very good.

And then the — I wanted to follow up a little bit on this — the
questions involving your role as Attorney General. Obviously you
were Attorney General representing the State of Kansas in litiga-
tion and other matters. Could you describe how you see the role of
Attorney General different than the role of a judge, a Circuit
Judge?

Mr. Six. Well, thank you for that question, Senator. Certainly as
Attorney General, you are an advocate often for positions, whether
they relate to public safety or other types of activities the office
may pursue. At the same time, you’re also the legal representative
of the State and you defend statutes passed by the State legislature
as to their constitutionality. You certainly do that whether you be-
lieve it’s the right view or the wrong view, or a good statute or a
bad statute. It’s just your role to support what the legislature has
done. So we did that in various ways and represented the State,
and certainly if I were fortunate enough to be confirmed, I under-
stand that under our separation of powers, as a judge you’re in a
completely different role.

Senator Klobuchar. Right.

742

And with regard to the discussion on the patient protection Af-
fordable Care Act, in that role you looked at the law and made a
legal analysis. Is that right?

Mr. Six. Not only that, I assigned it to our Assistant Attorney
Generals, experts in various areas, and had them submit reports
back to me. Then we met and talked about that. The conclusion not
just of me but the research attorneys, the four or five of them in
the office that were part of the team and were attorneys that were
there prior to my becoming Attorney General, supported the view
that I had in the discussion with Senator Lee.

Senator Klobuchar. And it sounds like the — just looking at the
numbers, the States were basically split on this, whether to get in-
volved in this suit or not. Is that right?

Mr. Six. Well, it’s

Senator Klobuchar. Or this appeal.

Mr. Six. It appears to be a bit of a rolling boulder gaining some
speed, so there are more on now than at the time we made our de-
cision.

Senator Klobuchar. OK. Very good.

And the — and you also were involved and you wrote a letter ob-
jecting to that Nebraksa compromise. Is that correct?

Mr. Six. That was shortly before the bill was passed. There was
the Cornhusker kickback, or the Nebraska compromise, what they
were calling it. Essentially as I understood it, and it was a

Senator Klobuchar. I suppose you said we have more corn in
Kansas.

Mr. Six. You know, I don’t know if we do or not. But certainly
the view of the people in Kansas was that they shouldn’t be treated
any differently or disfavorably from perhaps the folks in Nebraska.
It was a complicated act and a lot of pages. From what we could
gather, that was one of the potential results. I wrote a letter to the
Congress suggesting that perhaps we shouldn’t proceed that way.

Mr. Six. And just to clarify the Tiller questions that Senator
Grassley had asked, that in fact your office actually prosecuted
Tiller on misdemeanor charges. Is that right?

Mr. Six. That’s correct. When I took over as Attorney General I
didn’t go back through every case in the office and interject per-
sonal opinions into them. We had qualified prosecutors who were
pursuing them. The cases that Senator Grassley discussed with me
and the case against Dr. Tiller, I took over, and the cases continued
with the Assistant Attorney Generals pursuing them, applying
their ethical duties as prosecutors, and handling tough cases. There
wasn’t anybody in the office that would have chose to do that, but
when it’s your job as a prosecutor that’s what you do.

Senator Klobuchar. And then just to clarify for the record, Dr.
Tiller was the doctor that was killed during church. Is that correct?

Mr. Six. That’s correct.

Senator Klobuchar. Thank you very much.

Senator Lee, you had more questions to ask?

Senator Lee. Thank you very much.

I just wanted to follow up on our previous line of questioning. I
noticed that on October 24, 2010, in a local paper in your State,
you noted an explanation for your analysis that really wasn’t re-
lated to the lawsuit, it was related to the constitutionality of the

743

Affordable Care Act generally, saying, “Following a thorough legal
analysis I determined that there were no constitutional defects
with the new health care law”, which is different than just saying
there’s no standing problem.

So in light of that, I want to delve into some of those issues for
a minute if we could, dealing with the individual mandate. Would
you agree, first of all, that James Madison got it right when he
said in Federalist #45 that the powers of the Federal Government
are few and defined, while those reserved to the States are numer-
ous and indefinite. Do you agree with that general principle?

Mr. Six. I would agree with that. I believe the Tenth Amendment
supports that.

Senator Lee. OK. And in light of that, if in fact the powers of
the Federal Government are few and defined, then there does have
to be some limit on Federal power.

Now, if Congress can wield the power necessary to tell individual
Americans, individual Americans living within some State, whether
it’s Utah, or Kansas, or some other State, if Congress has the
power to say to such a person, you must go out and you must buy
a specific product, not just any product, but health insurance, the
kind of health insurance that we in our infinite wisdom tell you
that you must buy.

Isn’t there a real slippery slope there in the sense that if we can
do that and if we can then tell people they’ve got to buy that or
else pay a penalty because it’s good for their own health, what
would then stop us from telling people that they need to go out and
buy two servings of green, leafy vegetables every single day and eat
those so that they will be healthy? Couldn’t we do that?

Mr. Six. Well, I understand the principle you’re talking about
and I think the Supreme Court, in the United States v. Lopez and
United States v. Morrison cases, talked about the limits that you’ve
just articulated. And I certainly would follow those precedents and
that guidance. I think it’s difficult of course to decide cases in the
hypothetical. I think requiring somebody, just thinking about it as
you presented it, to ingest something probably raising some sub-
stantive due process arguments that may not exist to having to buy
something.

But I certainly understand the concept you’re talking about, and
if presented with that I would try to apply certainly the guidance
that the Supreme Court has, and hopefully very soon maybe some
analogous guidance that may come out of the Fourth Circuit, or
certainly from the Supreme Court when they get this issue.

Senator Lee. Well, and in fairness if the hypothetical statute we
were addressing were one just requiring you to ingest it, in addi-
tion to any substantive due process problems that might present,
that also would be something regulating non-economic activity, eat-
ing, as opposed to actually purchasing health insurance.

But couldn’t we change that simply by saying you must pur-
chase? In other words, you must take the first $200 a month out
of your paycheck and buy two servings of green, leafy vegetables.
We’re not going to enforce it to make sure you actually eat it, but
you have to buy it. How do you distinguish that from the individual
mandate in the Affordable Care Act?

744

Mr. Six. Well, I think it is not something that I have analyzed
approaching for today and the hypothetical you have referenced. It
certainly is, I think, a similar analysis.

Senator Lee. And if there are in fact limits on Federal authority,
they would certainly have been breached by the time we get to the
point of telling people they have to buy $200 of green, leafy vegeta-
bles every month.

Mr. Six. That seems like an example that perhaps, if you just
polled the room here, most people would agree with, I’d say.

Senator Lee. OK. And would they be right?

Mr. Six. Again, it’s hard to decide things in advance in a specific
way or commit to what I would rule if that case would appear be-
fore the court. But I certainly hear what you’re saying and it has
a very solid sound to it.

Senator Lee. OK. Thank you.

Thank you very much.

Senator Klobuchar. Anything else?

[No response].

Senator Klobuchar. Well, thank you very much, Mr. Six.

Mr. Six. Thank you.

Senator Klobuchar. I see one of your sons is yawning. I won’t
say which one.

[Laughter.]

Senator Klobuchar. But I thank you for appearing before us
today. We look forward to hearing from you again. The record will
stay open for any additional questions for 1 week. Thank you very
much.

Mr. Six. I appreciate the Committee’s time. Thank you.

[The biographical information follows.]

745

UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY

QUESTIONNAIRE FOR JUDICIAL NOMINEES

PUBLIC

1 . Name ; State full name (include any former names used).

Stephen Newton Six

2. Position : State the position for which you have been nominated.

United States Circuit Judge for the Tenth Circuit

3. Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.

Stevens & Brand
900 Massachusetts Street
Lawrence, Kansas 66044

4. Birthplace : State year and place of birth.

1965; Lawrence, Kansas

5. Education : List in reverse chronological order esc*' college, law school, or any .other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.

1990 - 1993, University ofKansas School of Law; J.D., 1993
1984 - 1988, Carleton College; B.A., Economics, 1988

6. Employment Record : List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation
from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.

2011 - present
Stevens & Brand
900 Massachusetts Street
Lawrence, Kansas 66044
Partner

746

20 1 1 - present

Columbia University Law School, State Attorney General Program
435 West 116th Street
New York, New York 10027
Research Scholar

2008-2011
State of Kansas
120 SW' 10th Street
Topeka, Kansas 66612
Kansas Attorney General

2005-2008
State of Kansas
Seventh Judicial District
111 East 11th Street
Lawrence, Kansas 66044
District Court Judge

1994-2005

Shamberg, Johnson & Bergman
2600 Grand Boulevard, Suite 550
Kansas City, Missouri 64108
Partner (2000-2005)

Litigation Associate (1994 - 2000)

1993 -1994

United States Court of Appeals for the Tenth Circuit
643 Massachusetts Avenue, Suite 301
Lawrence, Kansas 66044
Law Clerk to Judge Deanell R. Tacha

1993

University of Kansas School of Law
1535 West 15th Street
Lawrence, Kansas 66045

Legal Writing Teaching Assistant to Professor Ellen Sward
Summer 1993

Shamberg, Johnson & Bergman
4551 West 107th Street, Suite 355
Overland Park, Kansas 66207
Summer Associate

2

747

Summer 1992
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Summer Associate

Summer 1991, August 1992
Shook, Hardy & Bacon
10801 Mastin, Suite 1000
Overland Park, Kansas 66210
Summer Associate

1988-1990
National Archives
Old Executive Office Building
1 7th and Pennsylvania Avenue, NW
Washington, D.C. 20503

Staff Assistant, Detailee Assigned to the White House Appointments and Scheduling
Office

Other Affiliation s ( uncompensated'):

2004 - 2005

West Hills Homes Association
No physical address
President (2004 -2005)

Secretary (2006)

2003-2005
Kansas Bar Foundation
1200 SW Harrison
Topeka, Kansas 66612
Board of Trustees

2001-2005
Kansas Bar Association
1 20 SW Harrison
Topeka, Kansas 66612
Board of Governors

2002 - 2004

Kansas Trial Lawyers Association
719 SW Van Buren
T opeka, Kansas 66603
Board of Governors

3

748

2001 -2003
Kansas Law Society
University of Kansas
1535 West 1 5th Street
Lawrence, Kansas 66045
Board of Governors

1995-1996

Lawrence Habitat for Humanity
720 Connecticut Street
Lawrence, Kansas 66044
Board Member

7. Military Service and Draft Status : Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.

I have not served in the military. I registered for selective service.

8. Honors and Awards : List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.

Smiling Bull Award for Service to the Legal Profession, Leavenworth County Bar
Association (2010)

Award for Combating Underage Drinking, Century Council (2010)

Key to City of Lamed, for work preserving Pawnee County Hospital (2010)

Kansas Law Enforcement Training Center Service Award (2009)

Patriot Award, National Committee for Employer Support of the Guard and Reserve
(2009)

Service Recognition Award, Southwest Kansas Bar Association (2009)

Crime Stoppers Service Award (2009, 2008)

DARE Officers Association Service Award (2008)

Outstanding Service Award, Douglas County Bar Association (2008)

Rice Foundation Scholar, Kansas Law School (1990-1993)

Order of the Coif, Kansas Law School (1993)

William Burdick Award in Law, for highest cumulative average after the first year,
Kansas Law School (1991)

9. Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.

American Bar Association, Litigation Section (2001-2005)

American Trial Lawyers Association

4

749

Democratic Attorneys General Association, Allocation Committee (2008)

Douglas County Bar Association
Douglas County Bench-Bar Committee
Douglas County Law Library Board (2005-2008)

Earl O’Connor Inn of Court, Overland Park, Kansas, Associate Member (1998-2000)
Governors Domestic Violence Fatality Review Board (2008-2011)

Hugh Means Inn of Court, Lawrence, Kansas, Barrister (2005-2008)

Johnson County Bar Association
Johnson County Bar Foundation
Kansas Bar Association

Board of Governors (200 1 -2005)

Bench -Bar Committee (200 1 -2005)

Chairman, Professional Insurance Committee (2002-2004)

Annual Meeting Committee (2002)

Kansas Bar Foundation, Board of Trustees (2003-2005)

Kansas Board of Canvassers (2008-201 1 )

Kansas City Metropolitan Bar Association

Kansas Council For Interstate Adult Offender Supervision (2008-201 1)

Kansas County and District Attorneys Association
Kansas Criminal Justice Coordinating Council (2008-201 1)

Kansas Peace Officers Association (2009-201 1)

Kansas Sentencing Commission (2008-201 1)

Kansas Reentry Policy Committee (2008-201 1)

Kansas Fusion Center (2010-201 1)

Kansas Judicial Counsel False Claim Act Advisory Committee (2008-201 1)

Kansas Law Society, University of Kansas, Board of Governors (2001-2003)

Kansas State Elections Objection Board (2008-2011)

Kansas Trial Lawyers Association, Board of Governors (2002-2004)

Missouri Association of Trial Lawyers
Missouri Bar Association

National Association of Attorneys Genera! (2008-2011)

Executive Committee (2009)

Chair, Midwest Region (2009)

Vice-Chair, Midwest Region (2008)

Health and Public Safety Committee (2010-2011)

State-Federal Task Force on Mortgage Enforcement (2010-2011)

Consumer Protection Working Group (2010-2011)

Society of Attorneys General Emeritus (2011)

United States District Court, District of Kansas, Bench-Bar Committee

United States District Court, District of Kansas, Magistrate Screening Committee (2002)

Wyandotte County Bar Association

10. Bar and Court Admission :

a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.

5

750

Kansas, 1993

Missouri, 1994 (inactive as of 2005)

There have been no lapses in membership.

b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
in membership. Give the same information for administrative bodies that require
special admission to practice.

Supreme Court of the United States, 1 996

United States Court of Appeals for the Tenth Circuit, 1 994

United States District Court, District of Kansas, 1993

United States District Court, Western District of Missouri, 1994

In 2000, 1 did not renew my membership in the United States District Court for
the Western District of Missouri. I am eligible for reinstatement. Otherwise,
there have been no lapses in membership.

11. Memberships :

a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 10 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership or participation, and indicate any office you held.
Include clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.

Alvamar Country Club (1995-201 1)

Carlcton College Alumni Association (1988-2011)

Douglas County United Way, Fundraising Committee (2004-2005)

Fraternal Order of Police (2008-2011)

Kansas University Alumni Association (1993-201 1)

Lawrence Habitat for Humanity

Board Member (1995-1996)

Lawrence Memorial Hospital, Pediatric Unit Fundraising Committee (1 999-2002)
Plymouth Congregational Church, Stewardship Committee, Annual Appeal

Committee, Mission, Pastor Selection, Second Century Capital Campaign,
Plymouth Friends (1995-2011)

Tower Foundation (2008-201 1)

West Hills Homes Association, President (2004-2005)

William Educational Fund, Kansas University (1993-201 1)

YMCA of the Rockies (1 994-20 11)

YWCA (2008-201 1)

6

751

b. The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion, or national
origin. Indicate whether any of these organizations listed in response to 11a above
currently discriminate or formerly discriminated on the basis of race, sex, religion
or national origin either through formal membership requirements or the practical
implementation of membership policies. If so, describe any action you have taken
to change these policies and practices.

To the best of my knowledge, none of the organizations listed above currently
discriminates or formerly discriminated on the basis of race, sex, or religion, or
national origin.

) 2. Published Writings and Public Statements :

a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Supply four (4) copies of all published
material to the Committee.

This list represents the published material I have identified through searches of
my files and Internet databases. I have tried my best to list all of them here,
although there may be some that I have not been able to identity or locate.

Stevesix.com Campaign Website (maintained by staff) (2009 -Nov. 3, 2010).
Copy of existing website supplied. I do not have copies of archived versions of
past website content.

Steve Six Facebook Account (maintained by staff) (Apr. 9, 2009 -Nov. 3, 2010).
Copy supplied.

SteveSixAG Twitter Account (maintained by staff) (Feb. 8, 2010- Oct. 6, 2010).
Copy supplied.

“Budget Cuts Pose Serious Threat to Public Safety,” Kan. Trooper Mag. (Summer
2010). Copy supplied.

“Working to Save Families From the Meth Epidemic,” Kan. Trooper Mag.
(Winter 2009). Copy supplied.

"Budget Cuts Could Weaken Public Safety,” Kan. Trooper Mag. (Spring 2009).
Copy supplied.

“Arizona v. Gant, Guidance Regarding Car Searches Incident to Arrest,” Kan.
Trooper Mag. (Summer 2009). Copy Supplied.

7

752

“Letter: Attorney General Six Supports Adrian,” Newton Kansan, Oct. 25, 2008.
Copy supplied.

“Identity Theft Threatens All Kansans, but We Can Help,” Kan. Trooper Mag,
(Fall 2008). Copy supplied.

“A Safe Internet,” Hutchinson News, Mar. 7, 2008. Copy supplied.

“Introduction to Attorney General Steve Six,” Kan. Trooper Mag. (Spring 2008).
Copy supplied.

“New Attorney General Steve Six, Setting High Standards,” Kan. Peace Officer
Mag. (Spring 2008). Copy supplied.

“Lawsuits Against Municipalities: Notice of Claim Under KSA 12-105b,” Kan.
Trial Law. Ass’n J. 16,2005. Copy supplied.

“A Primer For Handling A Defective Tire Case: The Plaintiffs View,” Vol. Kan.
Trial Law. Ass’n J. 1 0, May 2004. Copy supplied.

“Mandatory Malpractice Insurance Disclosure: Is the Time Right for Kansas,” J.
Kan. Bar Ass’n (Mar. 2003). Copy supplied.

Steve Six & Steve Bough, “The Third Restatement of Products Liability: New
Requirement of a Reasonable Alternative Design a Radical Change in the Law,”
22 Kan. Trial Law. Ass’n J. 3, Jan. 1099. Copy supplied.

Lynn R. Johnson, Stephen N. Six, Patrick A. Hamilton, “Expert Testimony in
Federal Court: Frye, Daubetr, and Joiner,” AH-ABA Course of Study Materials
(for speech delivered by Lynn Johnson), Feb. 12, 1998. Copy supplied.

Lynn R. Johnson, Stephen N. Six, Patrick A. Hamilton, “Deciphering Daubert:
Daubert’s Limitations are Obvious in the Opinion’s First Sentence: ‘[W)e are
Called Upon to Determine the Standard for Admitting Expert Scientific
Testimony...',” Trial (Nov. 1997). Copy supplied.

Additionally, while I served as Attorney General, my office issued, in hard copy
and/or online, a number of short publications on issues such as consumer
protection and persona! safety. I did not have any direct role in the drafting,
editing, or publication of these materials, but they were issued under my name, in
my official capacity.

b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, give the

8

753

name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.

This list represents the reports, memoranda and policy statements I have identified
through searches of my files and Fntemet databases. I have tried my best to list all
such documents to which I contributed, although there may be some that I have
not been able to identify or locate.

The reports listed below from the Kansas Attorney General’s office were prepared
by others under my supervision, with little, if any direct involvement by me. The
report to the Kansas Supreme Court was prepared by me and reflects the views of
the committee appointed by the Kansas Bar Association to study the issue,

Kansas Child Death Review Board Annual Report (2010). Available at
httn://www .ksag.org/files/Final 2010 Annual Report with 2008 data.ndf .

Kansas Attorney General’s Racial Profiling Complaint Reports (2009). Available
at http://www.ksag.org/files/2010 Racial Profiling chart.pdf .

KOMA/KORA Complaints Received By the Attorney General’s Office Report
Pursuant K.S.A. 2009 Supp. 75-753 (2010). Available at
http://www.k5ag.org/files/201Q AG KOMA-KORA Report.pdf .

Kansas Attorney General’s Office Report on Counties Reporting KOMA or
KORA Complaints (201 0). Available at

http://www.ksag.org/files/201Q County KOMA-KORA renort.pdf .

Kansas Attorney General’s Annual Report (201 0). Copy supplied.

Kansas Attorney General’s Consumer Protection Division Annual Report (2010).
Available at http://www.ksag.org/files/2010 Fiscal Yea r Report 2.pdf .

Kansas Attorney General's Conceal Carry Report (2010). Available at
http:// www.ksa g.or g/files/media/concealed-carrv/FY 2010 Annual Reoort.pdf .

Kansas Attorney General’s Abuse, Neglect & Exploitation Unit Report (2010).
Available at http'V/www . ksag.org/files/lOOO-^OlO ANE Annual Report.pdf .

Essential Elements and Standards of Batterer Intervention Programs, Kansas
Office of the Attorney General (May 27, 2009). Available at
http://www.ksag.org/files/BIP Standards Revised 12 14 09.pdf .

Silver Alert Media Guide, Kansas Office of the Attorney General (2009).

Available at http://www.ksaa.org/files/MediaSilverAlert.pdf .

9

754

Silver Alert Law Enforcement Policy, Kansas Office of the Attorney General
(2009). Available at http://w ww. ksag.org/files/SilverAlert.pdf .

Silver Alert Protocol, Kansas Office of the Attorney Genera] (2009). Available at
http : //www.ksaE.org/filcs/SilverAlcrtProtocol.ndf .

Kansas Child Death Review Board Annual Report (2009). Available at

http://www.k5ag.0rE/files/Final.Ddf

Kansas Crime Victims Compensation Board Annual Report (2009).
htt p : //www.ksaE.org/files/CVCB ANNUAL REPORT 09 FINAL.ndf .

Kansas Attorney General’s Racial Profiling Complaint Reports (2009). Available
at http://www.k5ag.org/files/2009 Profiling Results 3 29 2010.pdf

KOMA/KORA Complaints Received By the Attorney General’s Office Report

Pursuant K.S.A. 2009 Supp. 75-753 (2009). Available at

htto://www. ksag.org/ fil cs/2009korakomacomplaintstoattomevgcncral .PDF .

Kansas Attorney General’s Office Report on Counties Reporting KOMA or
KORA Complaints (2009). Available at
http :// www.ksag.org/fiies/2009korakomacountvreport.PDF .

Governor’s Grants Program “Creating S.A.F.E. Communities” Annual Report
(2009). Copy supplied.

Kansas Attorney General’s Annual Report (2009). Copy supplied.

Kansas Attorney General’s Consumer Protection Division Annual Report (2009).
Available at

httn://www.ksag.org/files/2009 Fiscal Year Consumer Report 2.pdf

Kansas Attorney General’s Conceal Carry Report (2009). Available at
http://www.ksag.org/files/2009 Annual Report - Signed.pdf .

Kansas Attorney General’s Abuse, Neglect & Exploitation Unit Report (2009).
Available at http://www.ksag. org/files/ANE Annual Report 1-8-10 Final.pdf .

Model Law Enforcement Policy on Stalking, Kansas Office of the Attorney
General (July 24, 2008). Available at

http://www-ksag.org/files/shared/Model. Stalking.Policv.PDF .

Kansas Crime Victims Compensation Board Annual Report (2008). Available at
http://www.ksag.org/files/CVCB ANNUAL REPORT 2008.pdf .

10

755

c.

Kansas Attorney General’s Abuse, Neglect & Exploitation Unit Annual Report
(2008). Available at http://w ww. ksag.org/files/ANE Annual Report 1-8 -
10 Final.pdf .

Kansas Attorney General’s Conceal Carry Report (2008). Available at
http://www.ksag.o r g/fi les/shared/CC.AnnualReDort.08.ndf .

Kansas Attorney General’s Consumer Protection Division Annual Report (2008).
Available at bttD://www.ksag.or"/fiIes/ConsuinerAnnualReport2008.pdf .

Kansas Child Death Review Board Annual Report (2008). Available at
http: //ww w.lc5ag.org/files/shared/2008%20SCDRB%20AR.pdf .

Kansas Attorney General’s Racial Profiling Complaint Reports (2008). Copy
supplied.

KOMA/KORA Complaints Received By the Attorney General’s Office Report
Pursuant K.S.A. 2009 Supp. 75-753 (2008), Available at
http://www.ksae.org/files/sha re d/KOMA.KORA.complaintsQ8.tx3f .

Kansas Attorney General’s Office Report on Counties Reporting KOMA or
KORA Complaints (2008). Available at

htt p://www.ksag.org/files/shared/KQRA.KOMA.CountiesQ8.pdf .

Governor’s Grants Program “Creating S.A.F.E. Communities” Annual Report
(2008). Copy supplied.

Report to the Kansas Supreme Court on Attorneys’ Insurance Disclosure, Kansas
Bar Association (Jan. 2005). Copy supplied.

Supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials. Copy supplied.

This list represents the testimony, official statements, and other communications
relating to matters of public policy or legal interpretation that 1 have identified
through searches of my files and Internet databases. 1 have tried my best to list all
such documents to which I contributed, although there may be some that 1 have
not been able to identify or locate.

Letter to Assistant Secretary of the Interior for Indian Affairs on the fee-to-trust
application of the Wyandotte nation of Oklahoma (Sept. 13,2010). Copy
supplied.

11

756

National Association of Attorneys General Letter to Backpage.com urging efforts
to crack down on online human trafficking (Sept. 21, 2010). Copy supplied.

National Association of Attorneys General Letter to Craigslist.com urging efforts
to combat online human trafficking (Aug. 24, 2010). Copy supplied.

Letter to United States Attorney General Eric Holder on the lawsuit filed by the
United States against the State of Arizona over immigration laws (July 1 4, 2010).
Copy supplied.

National Association of Attorneys General Letter to the Federal Trade
Commission on the Telemarketing Sales Rule-Debt Relief Amendments Matter
No. R41 1001 (July 6, 2010). Copy supplied.

National Association of Attorneys General Letter to Senators Leahy and Sessions
on Secure and Responsible Drug Disposal Act of 2010, S. 3397 (June 25, 2010).
Copy supplied.

National Association of Attorneys General Letter to Topix.com urging more
consumer friendly Internet procedures to monitor abusive posts (May 13, 2010).
Copy supplied.

National Association of Attorneys General Letter to Representatives Conyers,
Waxman, Smith, and Barton on Secure and Responsible Drug Disposal Act of
2009, H.R. 1359 (May 12, 2010). Copy supplied.

National Association of Attorneys Genera! Letter to Senators Leahy and Sessions
supporting confirmation of Attorney General Alicia Liamtiaco of Guam (Apr. 15,
2010). Copy supplied.

Letter to Kansas Senator Morris on restoring funding for a contract with Correct
Care Solutions, which conducted evaluations of sexually violent predators eligible
for parole (Apr. 15, 2010). Copy supplied.

Joint Statement National Association of Attorneys General on Topix on Internet
issues (Apr. 9, 2010). Copy supplied.

National Association of Attorneys General Letter to the Federal Trade
Commission on Mortgage Assistance Relief Sendees Rulemaking, Rule R91 1003
(Apr. 5, 20 1 0). Copy supplied.

Testimony before the Kansas Senate Judiciary Committee supporting Senate
Concurrent Resolution 1 6 1 1 , a proposed ballot initiative on gun ownership rights
(Mar. 20, 201 0). Copy supplied.

12

757

Written testimony before the Kansas Senate Judiciary Committee on HB 2517,
supporting domestic violence prosecutions (Mar. 1 5, 201 0). Copy supplied.

National Association of Attorneys General Letter to United States House of
Representatives Supporting S.l 147 Prevent All Cigarette Trafficking Act of 2009
(Mar. 12, 2010). Copy supplied.

National Association of Attorneys General Letter to United States Senate
Supporting S.l 147 Prevent All Cigarette Trafficking Act of 2009 (Mar. 9, 2010).
Copy supplied.

Written testimony before the Kansas Senate Judiciary Committee on SB 456
supporting the Robo-Call Privacy Act (Feb. 12, 2010). Copy supplied.

Written testimony before the House Judiciary Committee on HB 2568 supporting
changes in the Durable Power of Attorney Act (Feb. 9, 20 1 0). Copy supplied.

Letter to Speaker of the House Nancy Pelosi and Majority Leader Harry Reid on
the Patient Protection and Affordable Care Act (Jan. 1 1, 2010). Copy supplied.

National Association of Attorneys General Letter to Federal Trade Commission
on Free Annual File Disclosures Rule No. R4 1 1 005 (Dec. 7, 2009). Copy
supplied.

National Association of Attorneys General Letter to Senators Kohl and Hatch,
Support for the Discount Pricing Consumer Protection Act (S. 148) (Oct. 27,
2009). Copy supplied.

National Association of Attorneys General Letter to Federal Trade Commission
on the Telemarketing Sales Rule-Debt Relief Amendments Matter No. R41 1 001
(Oet. 23, 2009). Copy supplied.

National Association of Attorneys General Letter to Senators Tom Harkin and
Mike Enzi supporting Keeping Parents and Communities Engaged Act (Oct. 2,
2009). I do not have a copy of this letter.

National Association of Attorneys General Letter to Senators Patrick Leahy and
Jeff Sessions supporting Crime Victims Fund Preservation Act of 2009 (Sept. 23,
2009). Copy supplied.

National Association of Attorneys General Letter to Representatives Bono-Mack
and Representative Barrow supporting Informed P2P User Act (Aug. 25, 2009).
Copy supplied.

13

758

National Association of Attorneys General Letter to Health and Human Services
Secretary Kathleen Sebelius on nursing home evaluations (Aug. 20, 2009). Copy
supplied.

National Association of Attorneys General Letter to the Federal Trade
Commission supporting Used Car Rule Regulatory Review, Matter No. P087604
(June 15, 2009). Copy supplied.

National Association of Attorneys General Letter to Attorney General Eric
Holder, Jr. on the Higher Education Opportunity Act and requesting support for
school loan repayment for prosecutors (Apr. 29, 2009). Copy supplied.

National Association of Attorneys General Letter to Senators Mikulski and
Shelby and Representatives Mollohan and Wolf on counterfeiting and piracy of
intellectual property (Apr. 25, 2009). Copy supplied.

National Association of Attorneys General Letter to Senators Dorgan and
Barrasso and Representatives Rahall and Hastings expressing concern with the
decision of the United States Supreme Court in Carcieri v. Salazar (Apr. 24,
2009). Copy supplied.

National Association of Attorneys General Letter the Federal Trade Commission
on preemption of state and local authority in the area of telecommunications
policy (Apr. 1,2009). Copy supplied.

Letter to Kansas State Senate Leadership opposing changes to Kansas’ death
penalty law (Mar. 12,2009). ‘"opy supplied.

Written testimony before the Kansas Senate Judiciary Committee on S.B. 44, the
Kansas False Claims Act (Mar. 10, 2009). Copy supplied.

Written testimony before the Kansas Senate Judiciary Committee on S.B. 208,
opposing the abolition of the death penalty (Feb. 26, 2009). Copy supplied.

National Association of Attorneys General Letter to President Barack Obama on
the Office of the Comptroller of the C urrency’s Interpretation of the National
Bank Act (Feb. 25, 2009). Copy supplied.

National Association of Attorneys General Letter to the Leadership of Congress
expressing concern over cuts in the Edward Byme Justice Assistance Grants (Feb.
4, 2009). Copy supplied.

National Association of Attorneys General Letter to members of Congress
supporting the confirmation of Ken Salazar as Secretary of the Interior (Jan. 14,
2009). I do not have a copy of this letter.

14

759

National Association of Attorneys General Letter to Senators Leahy and Specter
supporting the confirmation of Eric Holder as Attorney General (Jan. 14, 2009).
Copy supplied.

National Association of Attorneys General Letter to Senators Lieberman and
Collins supporting the confirmation of Janet Napolitano as Secretary of the
Department of Homeland Security (Jan. 13, 2009). Copy supplied.

Letter to Kansas Racing and Gaming Commission in response to a request for
review of three legislators appearing in a promotional video for a casino (Nov.
2008). Copy supplied.

State Attorneys General, Craigslist, and the National Center for Missing and
Exploited Children Joint Statement on Craigslist safety improvements (Oct. 30,
2008). Copy supplied.

National Association of Attorneys General Letter to Senators Reid and
McConnell supporting the Free Flow of Information Act (S. 2035) (June 23,
2008). Copy supplied.

National Association of Attorneys Genera! Letter to Senators Inouye and Stevens
and Representatives Dingell and Barton supporting HR4040 on toxic chemicals in
toys (May 28, 2008). Copy supplied.

National Association of Attorneys General Letter to Senators Leahy, Specter,

Kohl and Hatch and Representatives Conyers and Smith supporting (he Discount
Pricing Consumer Protection Act (S.2261) (May 14, 2008). Copy supplied.

Letter to the Assistant Secretary of the Interior for Indian Affairs on the fee-to-
trust application of the Wyandotte Nation of Oklahoma (Apr. 4, 2008). Copy
supplied.

National Association of Attorneys General Letter to Representatives Pclosi,
Hoyer, Boehner, and Blunt supporting Foreign Intelligence Surveillance Act
Amendments Act of 2007 (Mar. 4, 2008). Copy supplied.

National Association of Attorneys General Letter to the Leadership of Congress
urging restoration of grant funds for law enforcement programs funded by
Edward Byrne Justice Assistance Grants (Mar. 3, 2008). Copy supplied.

Written testimony before the Kansas Senate Ways and Means Committee on SB
524 supporting the Crime Victims Compensation Board (Feb. 12, 2008)
(erroneously labeled as Feb. 12,2008). Copy supplied.

Letter to Nebraska Attorney General Jon Bruning about the Kansas v. Nebraska
rfc Colorado lawsuit (Feb. 8, 2008). Copy supplied.

15

760

Attorney General Op inions

Copies are available on-line at http://ksag.washbumlaw.e du/o pmlist/index.htm .

Opinion No. 2010-19-County/City Tax Issues (Dec. 29, 2010)

Opinion No. 201 0-1 8-Gambling Devices (Nov. 15, 2010)

Opinion No. 2010-17-Open Records Act (July 1, 2010)

Opinion No. 2010-16- Ad Valorem Tax Levy for Financing Costs of Ancillary
School Facilities (June 25, 2010)

Opinion No. 20 10- 15-Records Division of Vehicles (June 25, 2010)

Opinion No. 2010-14- Register of Deeds Technology Fund (June 25, 2010)
Opinion No. 2010-13-Healing Arts Licensure (June 6, 2010)

Opinion No. 2010-12- Intoxicating Liquors and Beverages (June 16, 2010)
Opinion No. 201 0-1 1-Law Enforcement Training Center Qualifications (May 12,
2010)

Opinion No. 2010-10-Contractual Obligations of Defense Counsel (Apr. 7, 2010)
Opinion No. 2010-9-Dispute Resolution Confidentiality (Mar. 29, 2010)

Opinion No. 2010-8-Pet Animal Act (Mar. 29, 2010)

Opinion No. 2010-7- Licensing Lodging Establishments and Collecting Civil
Penalties (Feb. 24, 2010)

Opinion No, 20 10-6- Vocational Education Governing Body (Feb. 23, 2010)
Opinion No. 20 1 0-5-Soctal Welfare, Information Concerning Applicants For and
Recipients of Assistance (Feb. 23, 2010)

Opinion No. 20 10-4-Restriction of Legislative Power by Limiting legislative
Consideration of Proposed Bills Regarding Mandated Health Insurance
Coverage (Feb. 22, 2010)

Opinion No. 2010-3-Open Records Act (Feb. 1 1, 2010)

Opinion No. 20 1 0-2-Legal Publications (Jan. J 4, 201 0)

Opinion No. 2010-1-Terms Convention and Tourism Committee (Jan. 5, 2010)
Opinion No. 2009-23-State Lottery Issues (Nov. 25, 2009)

Opinion No. 2009-22-Open Meetings Act (Oct. 28, 2009)

Opinion No. 2009-21-Open Meetings Act (Sept. 23, 2009)

Opinion No. 2009-19-Uniform Commercial Code (Sept. 16, 2009)

Opinion No. 2009-20- Concealed Weapon Issues (Sept. 16, 2009)

Opinion No. 2009- 18-Open Records Act (Aug. 17, 2009)

Opinion No. 2009- 17-Petitions/Local Election Issues (Aug. 12, 2009)

Opinion No. 2009-16- Statutory Transfers of Funds to Health Care Stabilization
Fund (July 29, 2009)

Opinion No. 2009-15-Redevelopmenl Districts (July 29, 2009)

Opinion No, 2009- 14-Open Records Act (July 9, 2009)

Opinion No, 2009-1 3- National Association of State Workforce Agencies
(NASWA) (June 9, 2009)

Opinion No. 2009-1 2-Vacating Roads (May 5, 2009)

Opinion No. 2009-1 1 -Public Bidding/Contracts (Apr. 30, 2009)

Opinion No. 2009-10- Lottery Gaming Facility Review Board (Apr. 30, 2009)

16

761

Opinion No. 2009-9-Tax Levy County Commission/Hospital Board (Mar. 11,
2009)

Opinion No. 2009-8- Property Tax Exemption for Utilities Located Out-of-State
(Feb. 27, 2009)

Opinion No. 2009-6-Mortgage Registration lssues-Taxation (Feb. 12, 2009)
Opinion No. 2009-7- Conservation Reserve Program (CRP) Payments (Feb. 12,
2009)

Opinion No. 2009-5- Kansas Home Inspectors Professional Competence and
Financial Responsibility Act (Feb. 1 1, 2009)

Opinion No. 2009-4-Kansas Healing Arts Act (Jan. 26, 2009)

Opinion No. 2009-2-Kansas Constitution, One Subject Rule (Jan. 23, 2009)
Opinion No. 2009-3-Powers of Recreation Commission (Jan. 23, 2009)

Opinion No. 2009-1 -Taxation Issues (Jan. 13, 2009)

Opinion No. 2008-25-Sales Tax Implementation (Dec. 10, 2008)

Opinion No. 2008-24-Zoning Issues (Dec. 10, 2008)

Opinion No. 2008-23-Mayoral Appointments to Boards (Nov. 3, 2008)

Opinion No. 2008-22-Open Meetings (Sept. 29, 2008)

Opinion No. 2008-21 -Sentencing (Sept. 18, 2008)

Opinion No. 2008-20-Child Care Facilities (Sept. 2, 2008)

Opinion No. 2008-19-Consolidation of School Districts (Aug. 27, 2008)

Opinion No. 2008- 1 8-Expanded Lottery Act (June 30, 2008)

Opinion No. 2008-15-Oath of Office, Local Officials (June 26, 2008)

Opinion No. 2008-16-Offender Registration (June 26, 2008)

Opinion No. 2008-17-Expanded Lottery Act (June 20, 2008)

Opinion No. 2008-14-Sentencing-Multiplc Crimes (June 16, 2008)

Opinion No. 2008-13- Regulation of Dentists and Dental Hygienists (June 3,
2008)

Opinion No. 2008-12- Taxation— Newly Constructed Residential Property (Apr.
25,2008)

Opinion No. 2008-1 1 -Security Cameras in Motor Vehicle Department (Apr. 23,
2008)

Opinion No. 2008-9-School Unification Act Public Bid Requirements (Apr. 22,
2008)

Opinion No. 2008- 10- Ambulance Service Taxing District (Apr. 22, 2008)

Opinion No. 2008-8-Expanded Lottery Act (Apr. 16, 2008)

Opinion No. 2008-6-Healing Arts and Emergency Medical Services Licensure
(Mar. 31,2008)

Opinion No. 2008-7-Cost of Transport for Mentally 111 (Mar. 31, 2008)

Opinion No. 2008-5-Expanded Lottery Act (Mar. 6, 2008)

Opinion No. 2008-4 -Use of Electronic Signatures (Feb. 25, 2008)

d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by you, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk. If you do not have a copy of the speech or a transcript or

17

762

recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.
If you did not speak from a prepared text, furnish a copy of any outline or notes
from which you spoke.

This list represents the presentations 1 have identified by thoroughly searching my
memory and electronic and paper records. However, as Attorney General 1
frequently appeared at events and made brief remarks, introduced speakers or
handed out awards. For many of these events, I do not recall the date or location
of the event and I did not prepare remarks. These events, therefore, may not be
reflected below.

Jan. 28, 2011

Southwest Bar Association, speech about the First Amendment and protecting
service members’ families at funeral protests. Dodge City, Kansas. Presentation
slides supplied.

Jan. 10, 2011

Rotary Club, speech about the First Amendment and protecting service members’
families at funeral protests. Lawrence, Kansas. I used the same materials as
supplied for the Jan. 28, 201 1 event.

Dec. 16,2010

Kansas Bureau of Investigation, speech at New Agent Graduation about integrity
and character. Topeka, Kansas. I have no notes, transcript or recording. The
Kansas Bureau of Investigation is located at 1620 Southwest Tyler Street,

Topeka, Kansas 666 1 2.

Dec. 9, 2010

Leavenworth County Bar Association, speech about being a lawyer. Basehor,
Kansas. 1 have no notes, transcript or recording. Todd Thompson is the President
of the Leavenworth County Bar Association. Mr. Thompson’s address is,
Leavenworth County Attorney, 601 South 3rd, Suite 3069, Leavenworth, Kansas
66048.

Dec. 6,2010

American Bar Association, Health Law Section, speech about Medicaid fraud
prosecutions. Washington, D.C. Presentation slides supplied.

Nov. 18,2010

Society of Human Resources Management, speech about consumer protection.
Topeka, Kansas. I have no notes, transcript or recording. The address of the
Society of Human Resources Management is P.O. Box 2006, Topeka, Kansas
66601.

18

763

Oct. 28, 201 0

Kansas Sheriffs Association, speech about my work with sheriffs. Topeka,
Kansas. I have no notes, transcript or recording. The address of the Kansas
Sheriffs Association is P.O. Box ! 853, Salina, Kansas 67402.

Oct. 26, 2010

Safe Homes, speech about domestic violence. Winfield, Kansas. I have no notes,
transcript or recording, but press coverage is supplied. The event took place at the
Winfield Chamber of Commerce, 123 East 9th Avenue, Winfield, Kansas 67156.

Oct 25, 2010

Rotary Club of Overland Park, Attorney General campaign debate. Overland
Park, Kansas. I have no transcripts, recordings or notes, but press coverage is
supplied. The address of the Rotary Club of Overland Park is P.O. Box 7558,
Overland Park, Kansas 66207.

October 22, 2010

March to Action, remarks on domestic violence, Topeka, Kansas. I have no
notes, transcript or recording, but press coverage is supplied. The event was
sponsored by the YCWA, which is located at 225 SW 12th Street, Topeka,

Kansas 66612.

Oct. 19,2010

Kansas Association of Broadcasters, Attorney General campaign debate. Wichita,
Kansas. Video available at hHo://wwvv. youtube. coni/watcb?v -P6QK I mYn5fg ;
hnn://www.voutube.com/watch?v=JiKlTKwntQc :
httn://www, voutube.com/watch ?v=t3cwlblvMp4 :
http ://www; voutube.com/watch ?v=AC4cHWaNbl 4 :
hti p i/ Ayww.voutube.corn/watch?^ KkuOeNOfnO .

Oct. 16, 2010

Wyandotte County Third Saturday Democratic meeting. I have no notes,
transcript or recording. The address of the Wyandotte County Democratic Party
is 5000 State Avenue, Kansas City, Kansas 66102.

Oct. 12,2010

Wichita Bar Association, speech about the accomplishments of the attorney
general’s office. 1 have no notes, transcript or recording, but press and WBA
coverage is supplied. Wichita, Kansas. The Wichita Bar Association is located at
225 North Market, Suite 200, Wichita, Kansas 67202.

Oct. 6,2010

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. Washington, D.C. 1 have no
notes, transcript or recording. The event took place at Dickstein Shapiro, 1 825
Eye Street NW, Washington DC 20006.

19

764

Oct. 1,2010

Topeka Bar Association, speech about the accomplishments of the attorney
general’s office. Topeka, Kansas. I have no notes, transcript or recording, but
press coverage is available at httc://www.voutube.com/watch?v=kupDlXi813Q .
The Topeka Bar Association is located at 534 South Kansas Avenue, Suite 1 130,
Topeka, Kansas 66603.

Sept. 23,2010

Wichita Crime Commission, Attorney General campaign debate. Wichita,
Kansas. Video available at httD://\vww.voutubc.coin/watch?v=FJGkYO-inWE :
http://wwvv.voutube.com/watch?v=uR.uANlBiUfY :
htto://www. voutube.com/vvatcb ?v=8VAYmISiVkc :
http://www.voutubc.com/vvatch?v=DBuIB9WRxOs&featttre=related :
http://www.voutube.com/watch?v=-~xOnkuaAGtiefcfeature=related :
htto://www.voutube.coni/watch’?v=lvPdk R d8vOI&feature=related :
http://www.voutube.com/vvatch ?v=OOPPNJhGzBk&feature=related .

Sept. 22, 2010

Kansas Building Trades Meeting, speech about the accomplishments of the
attorney general’s office. Emporia, Kansas. 1 have no notes, transcript or
recording. The event was sponsored by the UA Local 441 which is located at
1330 East First Street North, Suite 115, Wichita, Kansas 67214.

Sept. 21,2010

Kansas Association of Chiefs of Police, speech about how law enforcement can
work together. I have no notes, transcript or recording. Topeka, Kansas The
address of the Kansas Association of Chiefs of Police is P.O. Box 780630,
Wichita, Kansas 67278.

Sept. 16,2010

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. Kansas City, Missouri. I have
no notes, transcript or recording. The event took place at Stueve Siegel Hanson,
460 Nichols Road, Suite 200, Kansas City, Missouri 64112.

Sept. 15,2010

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. Austin, Texas. I have no notes,
transcript or recording. The event took place at the Driskill Hotel, 604 Brazos
Street, Austin, Texas 78701.

Sept. 14,2010

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. Lawrence, Kansas. 1 have no

20

765

notes, transcript or recording. The event took place at The Oread, 1200 Oread
Avenue, Lawrence, Kansas 66044.

Sept. 11,2010

Memorial Speech to Recognize and Remember 9-11 to the general public,
Leavenworth, Kansas. I have no notes, transcript or recording but press coverage
is supplied. The Veterans of Foreign Wars of George Edward White Post 56
sponsored the memorial and is located at 523 Cherokee Street, Leavenworth,
Kansas 66048.

Sept. 6,2010

1BEW Labor Day Parade, Capitol, speech about the accomplishments of the
attorney general’s office. Topeka, Kansas. I have no notes, transcript or
recording but IREW coverage is supplied. The 1BEW Local 304 is located at
3906 Northwest 16th, Topeka, Kansas 6661 8.

Sept. 4, 2010

Ride For Their Lives, Child Victims Recognition, remarks about my work
protecting crime victims and recognizing the importance of the group’s work.
Salina, Kansas. I have no notes, transcript or recording, but press coverage is
supplied. The Surviving Parents Coalition, 1414 22nd Street N.W., Suite 4,
Washington, D.C. 20037, sponsored the Ride.

Sept. 1,2010

Johnson County Bar Association, about the accomplishments of the attorney
general’s office. Overland Park, Kansas. I have no notes, transcript or recording.
The Johnson County Bar Association is loca'ed at 1 30 North Clieny, Suite 202,
Olathe, Kansas 66061.

Aug. 27,2010

AFL-CIO Convention, speech about issues affecting seniors/retirees and
consumer protection. 1 have no notes, transcript or recording. The Topeka AFL-
CIO is located at 1620 Northwest Gage Boulevard, Topeka, Kansas 6661 8.

Aug. 21, 2010

Shawnee County Democrats AFL-CIO Reception, speech about the
accomplishments of the attorney general’s office. I have no notes, transcript or
recording. The event was coordinated by the Kansas Democratic Party, which is
located at 700 SW Jackson, Suite 706, Topeka, Kansas 66603.

Aug. 18,2010

Four Tribes meeting, remarks to tribal leaders about land trust, gaming, and
enforcement of sexual predator laws. Mayetta, Kansas. I have no notes,
transcript or recording. The address for the Prairie Band of Potawatomi Nation,
the host tribe for the meeting, is 1 628 1 Q Road, Mayetta, Kansas 66509.

21

766

Aug. 14,2010

Dcmofest, speech about the accomplishments of the attorney general’s office.
Wichita, Kansas. I have no notes, transcript or recording. The event was
sponsored by the Kansas Democratic Party, which is located at 700 SW Jackson,
Suite 706, Topeka, Kansas 66603.

Aug. 10,2010

Central Exchange, speech about the accomplishments of the attorney general’s
office. Overland Park, Kansas. I have no notes, transcript or recording. The
Central Exchange is located at 6201 College Boulevard, Overland Park, Kansas
66211.

Aug. 8,2010

Washburn University School of Law, speech about Snyder v. Phelps. I have no
notes, transcript or recording, but press coverage is supplied. The address of
Washburn University is 1700 SW College Avenue, Topeka, Kansas 66621 .

Aug. 8, 2010

Shawnee County Democrats Summer Family Picnic, speech about the
accomplishments of the attorney general’s office. Topeka, Kansas. I have no
notes, transcript or recording. The Shawnee County Democratic County Parly has
no physical address.

Aug. 5, 2010

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. I have no notes, transcript or
recording. The event took place at Bruce Kent’s home in Manhattan. Kansas.

Aug. 3,2010

Plaza Club Group, speech about the accomplishments of the attorney general’s
office. Kansas City, Missouri. I have no notes, transcript or recording. The event
took place at The Classic Cup Restaurant, 301 West 47th Street, Kansas City,
Missouri 64112.

July 28,2010

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. Overland Park, Kansas. T have
no notes, transcript or recording. The event took place at Polsinelli Shughart,
6200 College Boulevard, Suite 500, Overland Park, Kansas 66211.

July 1 7, 2010

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. Santa Fe, New Mexico. I have
no notes, transcript or recording. The event took place at the Coyote Cafe, 1 32
West Water Street, Santa Fe, New Mexico 87501.

22

767

July 15, 2010

Northeast Johnson County Chamber of Commerce, speech about the
accomplishments of the attorney general’s office. Prairie Village, Kansas. I have
no notes, transcript or recording, but press coverage is supplied. The Northeast
Johnson County Chamber of Commerce is located at 5800 Foxridge Drive #100,
Mission, Kansas 65202.

June 29, 2010

Steve Six for attorney genera! fundraising event, speech about the
accomplishments of the attorney general’s office. Lawrence, Kansas. 1 have no
notes, transcript or recording. The event took place at Roger Walter’s home.

June 22,2010

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. Olathe, Kansas. I have no
notes, transcript or recording. The event took place at Greg Orman’s home.

June 22, 2010

Senior Law Day, sponsored by the Extension Office and Central Plains Area
Agency on Aging, presentation about issues affecting seniors and consumer
protection. Wichita, Kansas. I have no notes, transcript or recording. The address
for the Extension Office and Central Plains Area Agency on Aging is West River
Plaza, 2622 West Central, Suite 500, Wichita, Kansas 67203.

June 16,2010

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. Topeka, Kansas. 1 have no
notes, transcript or recording. The event took place at Senator Laura Kelly’s
home.

June 11,2010

Elder Abuse Awareness, speech about issues affecting seniors and consumer
protection. Wichita, Kansas. Notes supplied.

June 10, 2010

Lamed Hospital event, speech about the preservation of the community hospital.
Lamed, Kansas. Remarks provided.

June 10, 2010

Meritrust, speech about consumer protection and the work of the attorney
general’s office. Wichita, Kansas, I have no notes, transcript or recording. The
address for Meritrust is P.O. Box 789757, Wichita, Kansas 67278.

June 10, 2010

Kansas County and District Attorneys Association, speech about work on issues
important to prosecutors and our work clearing the DNA backlog at the Kansas

23

768

Bureau of Investigation crime lab. Wichita, Kansas. I have no notes, transcript or
recording. The Kansas County and District Attorneys Association is located at
1200 Southwest 10th Avenue. Topeka, Kansas 66604.

June 10, 2010

Kansas Bar Association, “Eggs & Issues,” remarks about the accomplishments of
the attorney general’s office. Wichita, Kansas. I have no notes, transcript or
recording. The Kansas Bar is located at 1200 Southwest Harrison, Topeka,

Kansas 66612.

June 4, 20 1 0

Fraternal Order of Police, speech about the accomplishments of the attorney
general’s office. Great Bend, Kansas. Notes supplied.

June 4, 2010

Announcement speech for campaign for attorney general. Garden City, Kansas.
Remarks provided. Video excerpts available at
httn://www.ktka . com/videos/2010/i un/04/29762/ .

June 3, 2010

Announcement speech for campaign for attorney general. Topeka, Kansas. I
used the same script as provided for the June 4, 201 0 event in Garden City. Video
is available at: http://www2. li world.com/vi deos/2010/i un/03/30956/ and
htto://www.voutuhe.comAvatch?v=dB DiwlOViY .

June 3, 2010

Announcement speech for campaign for attorney general. Johnson County,
Kansas. I used the same script as provided for the June 4, 2010 event in Garden
City.

June 3, 2010

Announcement speech for campaign for attorney general. Pittsburg, Kansas. I
used the same script as provided for the June 4, 2010 event in Garden City.

June 3, 2010

Announcement speech for campaign for attorney general. Wichita, Kansas. I
used the same script as provided for the June 4, 201 0 event in Garden City.

June 3, 2010

Announcement speech for campaign for attorney general. Overland Park, Kansas.
Audio of my remarks is available at ht1t>://kansas. watchdog.org/39 4 6/ag-six-
an nounces-run-hasnt-had-time-to-read-arizona-irnmigration-bill/ .

May 31, 2010

Penwell-Gabel Memorial, Memorial Day Ceremony, speech about the values that
make our country great and recognizing the service of those who have fought to

24

769

protect those values. Topeka, Kansas. Video available at
hnp://www.v outub e,comAvatch?v=dChi02ATGxU .

May 25, 2010

AFL-CIO Tri-County Labor Meeting, speech about the accomplishments of the
attorney general’s office. Leavenworth, Kansas. I have no notes, transcript or
recording. The AFL-CIO Tri-County Labor is located at 7540 Leavenworth
Road, Kansas City, Kansas 66109.

May 17,2010

Reach Foundation, speech about issues confronting the Foundation. Merriam,
Kansas. I have no notes, transcript or recording. The Reach Foundation is located
at 6700 Antioch Road, #200, Merriam, Kansas 66204.

May 17,2010

Kiwanis Club, speech about the accomplishments of the attorney general’s office.
Topeka, Kansas. I have no notes, transcript or recording. The Kiwanis Club
meets at Jayhawk Tower, 700 Southwest Jackson, Topeka, Kansas 66603.

May 13,2010

Democratic Attorney General Spring Policy Conference, panel discussion on the
upcoming 2010 attorney general elections. Charleston, South Carolina. I have no
notes, transcript or recording. The address of the DAGA is 1580 Lincoln Street,
Suite 1125, Denver, Colorado 80203.

May 11,2010

DARE Fesl, Sandstone, graduation speech about remaining drug free. Kansas
City, Kansas. Notes supplied.

May 8,2010

Ellis County Bar Association, continuing legal education presentation on Using
Demonstrative Evidence at Trial. Hays, Kansas. Presentation slides supplied.

May 7, 2010

Law Enforcement Memorial, speech at a ceremony to honor law enforcement and
to recognize those officers who have given their lives in service to Kansas.
Topeka, Kansas. Notes supplied.

May 7,2010

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general's office. Hays, Kansas. The event took
place at Mr. Norman Jeter’s home.

May 4, 2010

Leavenworth County Bar Luncheon, Law Day, speech about the qualities that
make a good lawyer. Leavenworth, Kansas. Notes supplied.

25

770

May 3, 2010

Douglas County Bar Luncheon, speech about important qualities of a good
lawyer. Lawrence, Kansas. Notes supplied.

Apr. 28, 2010

Ask Listen Leant, speech to Cedar Creek Elementary students about Internet
safety. Olathe, Kansas. I have no notes, transcript or recording, but press
coverage is supplied. Ask Listen Learn is sponsored by the Century Council,
which is located at 2345 Crystal Drive, Suite 910, Arlington, Virginia 22202.

Apr. 22, 2010

Crime Victims’ Conference, speech about the attorney general office’s work with
victims of crime. Topeka, Kansas. Notes supplied.

Apr. 21, 2010

Kansas Highway Patrol Troopers Board Meeting, speech about working together
on criminal issues and relevant legislation. Lawrence, Kansas. I have no notes,
transcript or recording. The Kansas State Troopers Association is located at 1200
Southwest 10th, Topeka, Kansas 66604.

Apr. 13,2010

Sheet Metal Workers luncheon, speech about consumer protection and Medicaid
fraud. Kansas City, Missouri. I have no notes, transcript or recording. The
Kansas City, Missouri Sheet Metal Workers is located at 2902 Blue Ridge
Boulevard, #100, Kansas City, Missouri 64129.

Apr. 7,2010

Sunflower Foundation Retreat, speech about Medicaid fraud. Lawrence, Kansas.

1 have no notes, transcript or recording. The Sunflower Foundation is located at
1200 Southwest Executive Drive, Suite 100, Topeka, Kansas 66615.

Mar. 10,2010

Miami County Leadership, speech about the accomplishments of the attorney
general’s office. Topeka, Kansas. 1 have no notes, transcript or recording.

Miami County Leadership is located at 1710 Industrial Park Drive, Paola, Kansas
66071.

Mar. 9, 2010

State Youth Banquet, speech about leadership qualities and community
involvement. Topeka, Kansas. Notes supplied.

Mar. 9, 2010

Government Affairs and Lobbyist Breakfast, speech about the accomplishments
of the attorney general’s office. Topeka, Kansas. I have no notes, transcript or

26

771

recording. The event took place at the Celtic Fox Restaurant, 118 Southwest 8th,
Topeka, Kansas 66603.

Mar. 8, 2010

Federal Reserve Mortgage Event, speech about reducing loan modifications and
mortgage scams. Notes supplied.

Mar. 8,2010

Overland Park Rotary Club, speech about the accomplishments of the attorney
general’s office. Overland Park, Kansas. I have no notes, transcript or recording.
The address for the Overland Park Rotary Club is P.O. Box 7558, Overland Park,
Kansas 66207.

Feb. 27, 2010

Human Trafficking Panel, speech about human trafficking to Washburn
University students and the general public. Topeka, Kansas. Notes supplied.

Feb. 26, 2010

NetSmartz Workshop, remarks to elementary school students about Internet
safety. Lawrence, Kansas. Notes supplied. Video available at
http://www2.liworld.coni/videos/201 0/feb/24/291 80/ .

Feb. 22, 2010

Speech to Washhurn Law students about a legal career at the attorney general’s
office and what the office does. Topeka, Kansas. I have no notes, transcript or
recording. Washburn University School of Law is located at 1 700 Southwest
College Avenue. Topeka, Kansas 66621.

Feb. 18,2010

Franklin County Leadership Class, Ottawa Kansas Chamber of Commerce,
speech about the accomplishments of the attorney general’s office. Topeka,
Kansas. I have no notes, transcript or recording. The address of the Ottawa
Kansas Chamber of Commerce is 109 East 2nd, P.O. Box 580, Ottawa, Kansas
66067.

Feb. 16, 2010

NetSmartz Internet Safety Presentation, speech to elementary school students
about Internet safety. Lawrence, Kansas. 1 used the same materials as supplied
for the Feb. 26, 2010 NetSmartz workshop.

Feb, 4, 2010

Attorney General’s Call with state government lawyers, remarks about the work
of the attorney general's office. Notes supplied.

27

772

Feb. 3, 2010

Joint Law Enforcement Conference, speech about law enforcements work with
the attorney general’s office. Topeka, Kansas. Notes supplied.

Jan. 31,2010

Shawnee County Bean Feed, speech about the accomplishments of the attorney
general’s office. Topeka, Kansas. 1 have no notes, transcript or recording. The
event was sponsored by the Kansas Democratic Party, which is located at 700 SW
Jackson, Suite 706, Topeka, Kansas 66603.

Jan. 30, 2010

Democratic Attorney General Winter Policy Conference, panel discussion on
consumer protection for seniors. Key Biscayne, Florida. I have no notes,
transcript or recording. The address of DAGA is 1 580 Lincoln Street, Suite 1 125,
Denver, Colorado 80203.

Jan. 26, 2010

Kansas Health Care Association, Kansas Center for Assisted Living, speech about
policy and legislative issues affecting seniors. Topeka, Kansas. I have no notes,
transcript or recording. The Kansas Health Care Association is located at 1 1 7
Southwest 6th, Suite 200, Topeka, Kansas 66603.

Jan. 15, 2010

Rotary Club, Congressional Forum, sponsored by the Kansas City, Kansas
Chamber of Commerce, speech about the accomplishments of the attorney
general’s office. Kansas City, Kansas. I have no notes, transcript or recording,
but press coverage is supplied. The address of the Chamber of Commerce is 727
Minnesota Avenue, P.O. Box 1 71337, Kansas City, Kansas 66117.

Jan. 14,2010

Leadership Lawrence Judicial Panel, speech about the legal system. Lawrence,
Kansas. I have no notes, transcript or recording. Leadership Lawrence is located
at 646 Vermont Street, Suite 200, Lawrence, Kansas 66044.

Jan. 13, 2010

Shawnee Chamber of Commerce, speech about the accomplishments of the
attorney general’s office. Shawnee, Kansas. I have no notes, transcript or
recording, but press coverage is supplied. The Shawnee Chamber of Commerce
is located at 1 5 1 00 West 67th Street, #202, Shawnee Mission, Kansas 66217.

Dec. 17,2009

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. Topeka, Kansas. I have no
notes, transcript or recording. The event took place at Palmer, Leatherman, White
& Dalton, 2348 SW Topeka Boulevard, Topeka, Kansas 66611.

28

773

Dec. 15,2009

Holly House Domestic Violence Shelter, speech about preventing domestic
violence. Coffeyville, Kansas. Notes supplied.

Dec. 10, 2009

Steve Six for attorney genera! fundraising event, speech about the
accomplishments of the attorney general’s office. Washington, DC. I have no
notes, transcript or recording. The event took place at Zaytinya, 701 9th Street
NW, Washington, D.C. 20001.

Dec. 5, 2009

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office, Lawrence, Kansas. I have no
notes, transcript or recording. The event took place at Jon Davis’ home.

Dec. 1,2009

Speech to the United Auto Workers about the accomplishments of the attorney
general’s office. Kansas City, Kansas. Notes supplied.

Nov. 19, 2009

Sheriffs’ Conference, speech about the attorney general’s work with law
enforcement. Topeka, Kansas. Notes supplied.

Nov. 18,2009

Steve Six for attorney genera! fundraising event, speech about the
accomplishments of the attorney general’s office. Overland Park, Kansas. I have
no notes, transcript or recording. The event took place at Jeff Anthony’s home.

Nov. 16, 2009

Kansas Association of Counties, speech about the accomplishments of the
attorney general’s office. Topeka, Kansas. Notes supplied.

Nov. 12, 2009

Sedgwick County Chiefs of Police Meeting, speech about the attorney general’s
work with local law enforcement. Wichita, Kansas. Notes supplied.

Nov. 5, 2009

Kansas University Endocott Society, speech about the attorney general’s office.
Lawrence, Kansas. Notes supplied.

Oct. 29, 2009

Midwest Attorney General’s Conference, speech about Internet safety. Overland
Park, Kansas. Notes supplied.

29

774

Oct. 27, 2009

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. Mission Hills, Kansas. I have
no notes, transcript or recording. The event took place at Lynn Johnson’s home.

Oct. 22, 2009

After School Program, speech to students about Internet safety. Topeka, Kansas.
Notes and related press coverage supplied.

Oct 22, 2009

Kansas National Guard, Red Ribbon Drug Free Fly-In, speech to students about
the importance of staying drug free and a healthy lifestyle, Topeka, Kansas.

Notes supplied.

Oct. 18,2009

Chicfs-Redskins Pregame Show, panel about the Chiefs/Redskins game. Kansas
City, Missouri. Notes supplied.

Oct. 17,2009

Wyandotte County Democratic Party, Breakfast speaker about the
accomplishments of the attorney general’s office. Kansas City, Kansas. I have no
notes, transcript or recording. The address for the Wyandotte County Democratic
Party is 5000 State Avenue, Kansas City, Kansas 661 02.

Oct. 15, 2009

Manhattan Downtown Rotary, speech about the accomplishments of the attorney
general’s office. Manhattan, Kansas. I have no notes, transcript or recording.

The Downtown Rotary meets at the Holiday Inn, 1641 Anderson Avenue,
Manhattan, Kansas 66502.

Oct. 8, 2009

Steve Six for attorney genera! fundraising event, speech about the
accomplishments of the attorney general’s office. Lawrence, Kansas. I have no
notes, transcript or recording. The event took place at my home.

Sept. 15, 2009

Consumer Protection Seminar sponsored by the Attorney General’s Office,

Kansas State Fair. Presentation slides supplied.

Sept. 11,2009

Southwest Bar Association, speech about the Kansas Consumer Protection Act.
Dodge City, Kansas. Notes supplied.

Sept. 9, 2009

Personal Safety Forum, Kansas University, Lawrence, Kansas. Notes supplied.
Video and related news story available at

30

775

http://www2.liyvorld.com/news/2009/sep/09/raDist-string-attacks-likely-spving-
women-first-of/ ; http://www.ksn.com/news/local/storv/Students-ip-Manhattan-
Lawrence-wamed-about-ranist/cWvwcWa07kek3-UiT6BXAg.cspx .

Aug. 27, 2009

Kansas Law Enforcement Training Center, Commencement Address, speech
about their service and thanking them for choosing a career in law enforcement.
Hutchinson, Kansas. Notes supplied.

Aug. 27, 2009

Consumer seminar sponsored by the Kansas Attorney General’s Office, Kansas
State Fair, remarks about how Kansans can protect themselves from consumer
scams and identity theft. Hutchinson, Kansas. I have no notes, transcript or
recording, but press coverage is supplied. The address of the Kansas Attorney
General’s Office is Memorial Hail, 2nd Floor, 120 Southwest 10th Street, Topeka,
Kansas 66612.

Aug. 27, 2009

Wichita Crime Commission, speech about the attorney general’s work in criminal
justice issues. Wichita, Kansas. I have no notes, transcript or recording. The
Wichita Crime Commission is located at 125 North Market, Suite 1 1 15, Wichita,
Kansas 67202.

Aug. 26, 2009

Capitol Federal Leadership Forum, speech about leadership and ethics.

Lawrence, Kansas. I have no notes, transcript or recording. The event took place
at the Lied Center, 1600 Stewart Drive, Lawrence, Kansas 66045.

Aug. 25, 2009

Protect Vulnerable Adults Seminar, remarks about issues affecting seniors.
Topeka, Kansas. I have no notes, transcript Or recording. The event was co-
sponsored by the Kansas Attorney General’s Office, located at Memorial Hall,

2nd Floor, 120 Southwest 10th Street, Topeka, Kansas 66612.

Aug. 18,2009

Wichita Area Law Enforcement luncheon, speech about the attorney general
office’s work with the conceal carry program and prosecuting sexual predators.
Wichita, Kansas. 1 have no notes, transcript or recording. The event took place at
the Park City, Kansas Police Department, 61 10 North Hydraulic Street, Park City,
Kansas 67219.

July 3 1,2009

Shook Hardy Bacon lunch, remarks about the work of the attorney general’s
office. Kansas City, Missouri. I have no notes, transcript or recording. Shook
Hardy & Bacon is located at 2555 Grand Boulevard, Kansas City, Missouri
64108.

31

776

July 29, 2009

Steve Six for attorney general fundraising event, speeeh about the
accomplishments of the attorney general’s office. Wichita, Kansas. I have no
notes, transcript or recording. The event took place at The River City Brewery,
150 North Mosley Street, Wichita, Kansas 67202.

July 27, 2009

Johnson County Democratic Women Meeting, remarks about the
accomplishments of the attorney general's office. Lenexa, Kansas. I have no
notes, transcript or recording. The Johnson County Democratic Women contact
is memberinfo91@vahoo.com .

July 9, 2009

Kansas Bureau of Investigation 70th Anniversary, speech to KBT agents about the
attorney general’s offices work with the Bureau. Topeka, Kansas. Notes
supplied.

July 1,2009

Kansas Coalition Against Sexual and Domestic Violence, “Believe It. Help
Change It” Campaign kickoff event. Topeka, Kansas. I have no notes, transcript
or recording, but press coverage is supplied. The address of the Kansas Coalition
Against Sexual and Domestic Violence is 634 Southwest Harrison, Topeka,
Kansas 66603.

June 25, 2009

Kansas Open Record Act/Kansas Open Meetings Act, remarks about the
importance of open government. Topeka, Kansas. Notes supplied.

June 24, 2009

Kansas Open Record Act/Kansas Open Meetings Act, remarks about the
importance of open government. Olathe, Kansas. I used the same materials
supplied for the June 25, 2009 event.

June 19, 2009

Kansas County and District Attorneys Association, speech about the work of the
attorney general’s office in prosecuting criminals and fighting Medicaid fraud.
Wichita, Kansas. Notes supplied.

June 6, 2009

DARE School Officers, remarks about integrity, character and the importance of
their work. Topeka, Kansas. I have no notes, transcript or recording. The Kansas
State DARE Program is administered by Jerry Tenbrink, Kansas Attorney
General’s Office, 120 Southwest 10th Street, Topeka, Kansas 66612.

32

777

June 5, 2009

Law Enforcement Memorial, speech about the service of law enforcement
officers Topeka, Kansas. Notes supplied.

Apr. 30, 2009

Kansas City Metropolitan Bar Association, Bench-Bar Conference, Lake of the
Ozarks, Missouri, I spoke to the group about the work of the attorney general’s
office. Notes supplied.

Apr. 28, 2009

Spring Bank Seminar, Lawrence, Kansas, 1 spoke to the group about techniques
for tellers and bank managers to employ in fighting financial fraud affecting
seniors. Notes supplied.

Apr. 24, 2009

Batterers Intervention Board, Topeka, Kansas. I spoke to the group about
domestic violence prevention. Notes supplied.

Apr. 24, 2009

Rotary Club, Kiwanis Club, Manhattan, Kansas, I spoke to the group about the
accomplishments of the attorney general’s office. Notes supplied.

Apr. 23, 2009

Kansas State Firefighters Association, Great Bend, Kansas, I spoke to the group
about the work of the attorney general’s office. I have no notes, transcript or
recording. The Kansas State Firefighters Association’s has no physical address,
but its website is www.ksffa.com .

Apr. 21, 2009

UAW 31 Luncheon, Kansas City, Kansas, I spoke to the group about consumer
protection and issues affecting retirees. 1 have no notes, transcript or recording.
UAW Local 3 1 is located at 500 Kindelberger Road, Kansas City, Kansas 66115.

Apr. 16, 2009

Victims Rights Conference, Wichita, Kansas, I spoke to the group about
protecting victims of crime and also gave an awards presentation. Notes and
related press coverage supplied.

Apr. 10,2009

Governor’s One-Shot Turkey Hunt, One-Shot Banquet, I spoke to the group about
turkey hunting and handed out awards. I have no notes, transcript or recording,
but press coverage is supplied. The Governor’ s Office is located at 300 SW 1 0th
Avenue, Suite 241S, Topeka, Kansas 66612.

33

778

Apr. 7, 2009

Sunflower Foundation, Lawrence, Kansas, I spoke to the group about leadership
and management. I have no notes, transcript or recording. The Sunflower
Foundation is located at 1200 SW Executive Dr., Suite 100, Topeka, Kansas
66615.

Apr. 2, 2009

CTIA Wireless Conference, Las Vegas, Nevada, Wireless in Everyday Life, Panel
discussion about internet safety and wireless service in rural areas. Notes
supplied.

Mar. 25, 2009

Kansas Children’s Sendee League Luncheon, Topeka, Kansas, 1 spoke to the
group about prevention of child abuse and child neglect. Notes supplied.

Mar. 24, 2009

Humane Society News Conference, Kansas City, Kansas. Notes supplied.

Mar. 24, 2009

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. Topeka, Kansas. I have no
notes, transcript or recording. The event took place at Woner Glenn Reeder
Girard, 5611 SW Barrington Court South, Topeka, Kansas 66614.

Mar. 10, 2009

Kansas Auto Dealers Association, Wichita, Kansas, I spoke to the group about
consumer issues in automobile sales. I have no notes, transcript or recording.

The Kansas Auto Dealers Association is located at 731 South Kansas Avenue,
Topeka, Kansas 66603.

Mar. 2-6, 2009

National Consumer Protection Week Remarks. Notes supplied.

Mar. 4, 2009

Kansas Arts Commission Reception, Topeka, Kansas, I spoke to the group about
the importance of the arts in educating students. I have no notes, transcript or
recording. The Kansas Arts Commission is located at 700 SW Jackson, Suite
1004, Topeka, Kansas 66603.

Feb. 27, 2009

Washington Days, Topeka, Kansas, I spoke to an annual gathering of the Kansas
Democratic Party. Remarks provided.

Feb. 27, 2009

Crisis Intervention Training Summit, Topeka, Kansas, I spoke to the group about
the development and expansion of CIT. Notes supplied.

34

779

Feb. 24, 2009

Meet & Greet event, Garden City Community College, Garden City, Kansas, I
gave informal remarks on my office’s work and the death penalty. 1 have no
notes, transcript or recording, but press coverage is supplied. The address of
Garden City Community College is 801 Campus Drive, Garden City, Kansas
67846.

Feb. 24, 2009

International Pancake Day 2009 Breakfast, Liberal, Kansas, I spoke to the group
about how great it is to live in Kansas. Video is available at
http://www. voutube. com/wateh?v=m7rCa9DS3Yo .

Feb. 19, 2009

Franklin County Leadership Class, Topeka, Kansas, I spoke to the group about
leadership skills, management issues and the accomplishments of the attorney
general’s office. I have no notes, transcript or recording. The group is sponsored
by the Ottawa Kansas Chamber of Commerce, 109 East 2nd, P.O. Box 580,
Ottawa, Kansas 66067.

Feb. 18, 2009

Safe Streets-Safe Home Reception, Topeka, I spoke to the group about protecting
crime victims. Notes supplied.

Feb. 16, 2009

City of Liberal Leadership Training, Topeka, Kansas, 1 spoke to the group about
leadership skills, management issues and the accomplishments of the attorney
general’s office. I have no notes, transcript or recording. The group is sponsored
by the Liberal Chamber of Commerce, 4 Rock Island Road, Liberal, Kansas
67901.

Feb. 1 1, 2009

Johnson County leadership Class, Topeka, Kansas, 1 spoke about leadership
skills and the accomplishments of the attorney general’s office. I have no notes,
transcript or recording. The event took place at the Great Overland Station, 701
North Kansas Avenue, Topeka, Kansas 66608.

Feb. 1 1, 2009

Kansas Legislative Policy Group Day, Topeka, Kansas, 1 spoke to the group about
the accomplishments of the attorney general’s office and litigation on water
issues. I have no notes, transcript or recording. The group is located at 5 13 S.W.
Van Buren Street, Topeka, Kansas 66601 .

Feb. 11,2009

Democratic House Caucus Agenda Meeting, Topeka, Kansas. I spoke to the
group about the accomplishments of the attorney general’s office. I have no

35

780

notes, transcript or recording. The address of the Kansas House Democrats is 300
SW 10th Avenue, Suite 359-W, Topeka, Kansas 66612.

Feb. 6, 2009

United States Army, Command and General Staff College, Topeka, Kansas, I
spoke to officers attending the Command College about the attorney general’s
office. I have no notes, transcript or recording. The address of the U.S. Army is
1400 Defense Pentagon, Washington, DC 20301.

Feb. 5, 2009

Attorney General Call, Topeka, Kansas, 1 spoke to assistant and special assistant
attorney generals and other government lawyers about the attorney general’s
office and issues affecting government lawyers. Notes supplied.

Feb. 3, 2009

Kansas United, Topeka, Kansas, 1 spoke to the group about the attorney general’s
office and relevant legislative issues. 1 have no notes, transcript or recording.

The group is located at 5990 SW 28th Street, Suite F, Topeka, Kansas 66614.

Feb. 3, 2009

Government Affairs and l.obbyist Breakfast Club, Topeka, Kansas, I spoke to the
group about the attorney general’s office. I have no notes, transcript or recording.
The event took place at the Celtic Fox Restaurant, 1 1 8 SW 8th, Topeka, Kansas
66603.

Jan. 22, 2009

Kansas Highway Patrol Troopers BoaTd, Topeka, Kansas, I updated the group on
relevant legislative issues. I have no notes, transcript or recording. The Kansas
State Troopers Association is located at 1200 SW 10th, Topeka, Kansas 66604.

Jan. 13, 2009

Kansas Bureau of Investigation, Advisory Board, Topeka, Kansas, 1 spoke to the
group about some of the challenges facing law enforcement and the KBI with
coming budget cuts. I have no notes, transcript or recording. The Kansas Bureau
of Investigation is located at 1620 SW Tyler Street, Topeka, Kansas 66612.

Dec. 19, 2008

Kansas Law Enforcement Training Center, New Sheriff s School, Hutchinson,
Kansas, I spoke to the group about their duties and about the services of the
attorney general’s office provides to newly elected sheriffs. Notes supplied.

Dec. 17, 2008

Steve Six for attorney genera! fundraising event, speech about the
accomplishments of the attorney general's office. Overland Park, Kansas. I have
no notes, transcript or recording. The event took place at Yia Yia’s Restaurant,
4701 West 1 19th Street, Overland Park, Kansas 66209.

36

781

Dec. 16, 2008

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. Topeka, Kansas. I have no
notes, transcript or recording. The event took place at Palmer, I.eatherman, White
& Dalton, 2348 SW Topeka Boulevard, Topeka, Kansas 6661 1 .

Dec. 10, 2008

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. Washington, D.C. I have no
notes, transcript or recording. The event look place at the Rosa Mexicano, 575
7th Street NW, Washington, D.C. 20004.

Dec. 3, 2008

Mental Health Association, Wichita, Kansas, I spoke to the group about the
importance of community involvement in fighting elder abuse and new legislative
issues. 1 have no notes, transcript or recording, but press coverage is supplied.

The Mental Health Association is located at 555 North Woodlawn, Suite 31 05,
Wichita, Kansas 67208.

Dec. 3, 2008

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. Wichita, Kansas. I have no
notes, transcript or recording. The event took place at Joseph Cassell’s home.

Dee. 2, 2008

Steve Six for attorney general fundraising event, speech about the
accomplishments of the attorney general’s office. Lawrence, Kansas. I have no
notes, transcript or recording. The event took place at Susan Loomis’ home.

Nov. 20, 2008

Kansas Sheriffs Association Banquet, Topeka, Kansas, I spoke to the group about
the sacrifices made by law enforcement and the values that make our country
great. Notes supplied.

Nov. 20, 2008

Kansas Sheriffs Association Board Meeting, Topeka, Kansas, I spoke to the group
about the work of the attorney general’s office in prosecuting criminal cases. 1
have no notes, transcript or recording. The Kansas Sheriffs Association address
is P.O. Box 1122, Pittsburg, Kansas 66762.

Nov. 20, 2008

Kansas Sheriffs Association Conference, Topeka, Kansas, I spoke to the group
about the attorney general’s office and how we partner to fight crime. I have no
notes, transcript or recording. The Kansas Sheriff s Association’s address is P.O.
Box 1122, Pittsburg, Kansas 66762.

37

782

Nov. 13, 2008

Wichita Crime Commission, LEO Year Award, Wichita, Kansas, I recognized a
law enforcement officers work and service and presented an award. Notes
supplied.

Oct. 24, 2008

Board of Regents General Counsel, Topeka, Kansas, 1 spoke to the group about
the attorney genera! office’s work with the state universities and colleges. I have
no notes, transcript or recording. The address of the Board of Regents is 1 000
SW Jackson Street, Suite 520, Topeka, Kansas 66612.

Oct. 2, 2008

Kiwanis, Hays, Kansas, I spoke to the group about the attorney general’s office.
Notes supplied.

Oct. 2, 2008

Hays Meal Site, Hays, Kansas, I spoke to the group about issues affecting seniors
and consumer protection. I have no notes, transcript or recording. The event took
place at 2450 East 8th Street, Hays, Kansas 67601 .

Oct. 2, 2008

Western Kansas AARP Summit, speech about consumer protection and issues
affecting seniors. Hays, Kansas. Notes supplied.

Sept. 26, 2008

Remarks at fundraiser for Tom Adrian for Kansas State Legislature. Newton,
Kansas. I have no notes, transcript or recording. The event took place at the Fox
Ridge Conference Center, 800 South Kansas Avenue, Newton, Kansas 67114.

Sept. 26, 2008

Sedgwick County Democrats Luncheon, Wichita, Kansas, 1 spoke to the group
about the attorney general’s office. 1 have no notes, transcript or recording. The
Sedgwick County Democratic Party’s address is P.O. Box 1 736, Wichita, Kansas
67201.

Sept. 24, 2008

Joint Law Enforcement Training Luncheon, Lawrence, Kansas. 1 spoke to the
group about recidivism and criminal justice issues. Notes supplied.

Sept. 18,2008

Topeka Bar Association, Luncheon, Topeka, Kansas, I spoke to the group about
the attorney general’s office. I have no notes, transcript or recording. The
Topeka Bar Association is located at 534 South Kansas Avenue, Topeka, Kansas
66603.

38

783

Sept. 16, 2008

Step Up For Kids Day rally, Topeka, Kansas, I spoke to the group about the
importance of early childhood education. I have no notes, transcript or recording,
but press coverage is supplied. The rally was sponsored by the Kansas
Children’s Service League, which is located at 3545 SW 5th, Topeka, Kansas
66606.

Sept. 15, 2008

Rotary Club, Lawrence, Kansas, I spoke to the group about the attorney general’s
office. Notes supplied.

Sept. 12, 2008

Southwest Bar Association, Dodge City, Kansas, I spoke to the group about the
attorney general’s office. Notes supplied.

Sept. 11,2008

Kansas State Fair, remarks to law enforcement on consumer protection.
Hutchinson, Kansas. I have no notes, transcript or recording, but press coverage
is supplied. The Kansas State Fairgrounds are located at 2000 North Poplar
Street, Hutchinson, Kansas 67502.

Sept. 11,2008

Amber Alert, Hutchinson, Kansas, I spoke to the group about the success of the
Kansas Amber Alert program. I have no notes, transcript or recording. The
Kansas Amber Alert is administered by the Kansas Bureau of Investigation,
which is located at 1620 S.W. Tyler, Topeka, Kansas 66612.

Aug. 29, 2008

DARE Officer Training and Graduation, Salina, Kansas, I spoke to the group
about character, integrity and thanked them for choosing a career in law
enforcement. Notes supplied.

Aug. 25, 2008

Fight Crime: Invest in Kids, remarks with other law enforcement officials on the
impact of education on reducing crime. Kansas City, Kansas. I have no
transcripts, recordings or notes. The address of the national office of Fight Crime:
Invest in Kids is 1212 New York Avenue NW, Suite 300 Washington, D.C.

20005.

Aug. 22, 2008

AFL-CIO Convention, Topeka, Kansas, 1 spoke to the group about fighting
Medicaid fraud and protecting consumers. Notes supplied.

Aug. 21, 2008

Southeast Kansas Drug Task Force, Pittsburg, Kansas, I spoke to the group about
fighting drugs and prosecuting criminals. 1 have no notes, transcript or recording.

39

784

The Southeast Kansas Drug Task Force is administered by is administered by the
Kansas Bureau of Investigation. 1620 SW, Tyler, Topeka, Kansas 66612.

Aug. 21,2008

Kansas Auto Dealers Board Meeting, Manhattan, Kansas, I spoke to the group
about consumer issues in automobile sales. I have no notes, transcript or
recording. Kansas Automobile Dealers Association is located at 731 South
Kansas Avenue, Topeka, Kansas 66603.

Aug. 14, 2008

Rotary Luncheon, T opeka, Kansas, 1 spoke to the group about current issues in
the attorney general’s office. Notes supplied.

Aug. 12, 2008

DARE camp closing ceremony, Ottawa, Kansas, I spoke to the group about
integrity, character and staying off of drugs. I have no notes, transcript or
recording. The Kansas State DARE Program is administered by Jerry Tenbrink,
Kansas Attorney General’s Office, 120 SW 1 0th, Topeka, Kansas 66612.

Aug. 1,2008

National Night Out, Wichita, Kansas, I spoke to the group about fighting crime
and preventing becoming a victim of crime. Notes supplied.

July 31, 2008

Amber Alert Task Force Meeting, Topeka, Kansas, I spoke to the group about the
success of the Amber Alert program in Kansas. I have no notes, transcript or
recording. The Kansas Amber Alert is administered by the Kansas Bureau of
Investigation, 1620 S.W. Tyler, Topeka, Kansas 66612.

July 10, 2008

NetSafeKansas Internet Safety Presentation, Topeka, Kansas. I spoke to the
group about Internet safety. Notes supplied.

July 7, 2008

Salina PD Rotary Luncheon, Salina, Kansas, I spoke to the group about the
attorney general’s office. Notes supplied.

June 27, 2008

Convenience Store Retailers Association, Salina, Kansas, I spoke to the group
about combating underage smoking, licensing issues and tobacco enforcement. I
have no notes, transcript or recording. The group is located at 1 1 5 SE 7th Street,
Topeka, Kansas 66603.

40

785

June 1 0, 2008

Kansas County and District Attorney Association Conference, Wichita, Kansas, I
spoke to the group about the attorney general’s office’s work prosecuting
criminals. Notes supplied.

June 7, 2008

Fraternal Order of Police Conference, Wichita, Kansas, I spoke to the group about
criminal justice issues and relevant legislation. Notes supplied.

June 2, 2008

Kansas Criminal Justice Information Systems Conference, Hutchinson, Kansas, I
spoke to the group about how information sharing can help fight crime. Notes
supplied.

May 28, 2008

Wichita Crime Commission, Wichita, Kansas, I spoke to the group about fighting
crime and handed out awards. Notes supplied.

May 28, 2008

Young Presidents Organization, Wichita, Kansas, I spoke to the group about the
attorney general’s office. Notes supplied.

May 22, 2008

Kansas Department of Corrections Luncheon, Topeka, Kansas, 1 spoke to the
group about criminal justice issues. Notes supplied.

May 20, 2008

Kansas Bureau of Investigation, In-Scrviee Training, Topeka, Kansas, I spoke to
the group about our work fighting crime, the budget and challenges ahead. I have
no notes, transcript or recording. The Kansas Bureau of Investigation is located at
1620 SW Tyler Street, Topeka, Kansas 66612.

May 14, 2008

Combating Elder Abuse & Financial Exploitation Summit, Olathe, Kansas, I
spoke to the group about consumer protection. Notes supplied.

May 9, 2008

Law Enforcement Memorial, Capitol, Topeka, Kansas, 1 spoke at a ceremony
recognizing law enforcement officers’ service and honoring those who have given
their life in service of Kansas. Notes supplied.

May 8, 2008

Joint Meeting Inns of Court, Lawrence, Kansas, I spoke to the group about the
attorney general’s office. Notes supplied.

41

786

May 8, 2008

Board of Education, Recognition of Kansas Schools, Brown v. Board, Topeka,
Kansas, I spoke to the group about principles, character and integrity. Notes
supplied.

May 7, 2008

DARE Ceremony, Eudora, Kansas, I spoke to the group about character and
integrity. Notes supplied.

May 2, 2008

Long Term Care Ombudsman Conference, Capitol, Topeka, Kansas. I spoke to
the group about fighting Medicaid fraud and about consumer protection. Notes
supplied.

May 1, 2008

Law Day, Lyon County Bar Association, 1 gave the Law Day talk. Notes
supplied.

Apr. 28, 2008

Crime Stoppers Conference, Topeka, Kansas, I spoke to the group about fighting
crime. Notes supplied.

Apr. 25, 2008

Take Back the Night, Wichita, Kansas, I spoke to the group about the attorney
general office work with crime victims. Notes supplied.

Apr. 1 7, 2008

Kansas Bar Association, Membership Committee, conference call, I spoke to the
group on a conference call about ihe attorney general’s office. I have no notes,
transcript or recording. The Kansas Bar Association is located at 1200 SW
Harrison Avenue, Topeka, Kansas 66612.

Apr, 17,2008

Victim’s Rights Conference, Topeka, Kansas, I spoke to the group about the
attorney general’s work with crime victims. Notes supplied.

Apr. 15, 2008

Kansas Coalition Against Sexual Sl Domestic Violence, Topeka, Kansas. Notes
supplied.

Apr. 11-12, 2008

Governor’s One-Shot Turkey Hunt, One-Shot Banquet, I spoke to the group about
turkey hunting. 1 have no notes, transcript or recording. The address of the
Governor’s Office is 300 SW 10th Avenue, Suite 24 IS, Topeka, Kansas 66612.

42

787

Apr. 4, 2008

White Ribbon Project, Pittsburg, Kansas, I spoke to the group about domestic
violence, t have no notes, transcript or recording, but press coverage is supplied.
The event took place on the Commons Area at Pittsburg State University, 1 701
South Broadway, Pittsburg, Kansas 66762.

Apr. 4, 2008

Chamber of Commerce, Pittsburg, Kansas, I spoke to the group about the attorney
general’s office and our work on domestic violence. Notes supplied.

Apr. 3, 2008

Kansas Association of Student Financial Aid Administrators, Topeka, Kansas, I
spoke to the group about the attorney general’s office and our work with student
loan issues. Notes supplied.

Apr. 3, 2008

GaDuGi Victims Center, Lawrence, Kansas. I spoke to the group about crime
victim’s rights. Notes supplied. Video available at
http://www2.liworld.com/videos/2008/apr/Q3/17928/ .

Apr. 2, 2008

Herbert Walton Bench Bar Conference, Johnson County Bar Association,
Overland Park, Kansas, I spoke to bar members about the attorney general’s
office and discussed the Kansas Funeral Picketing statute and case law. Notes
supplied.

Apr. 2, 2008

Safe Home Kick-Off, Overland Park, Kansas, Victims’ Month event on domestic
violence. Notes supplied.

Mar. 13,2008

Boys and Girls Club, Topeka, Kansas, I spoke to members of the club about
Internet safety. 1 have no notes, transcript or recording. The Boys & Girls Clubs
of Topeka are located at 2150 SW Westport Drive, Suite 204, Topeka, Kansas
66614.

Mar. 13,2008

Youth of the Year, Dillon House, Topeka, Kansas, I spoke to students and
volunteers with the Boys and Girls Club about integrity and character. I have no
notes, transcript or recording. The Boys & Girls Clubs of Topeka are located at
2150 SW Westport Drive, Suite 204, Topeka, Kansas 66614.

Mar. 11,2008

Wichita Bar Luncheon, Botanica Gardens, Wichita, Kansas, I spoke to members
of the Sedgwick County Bar Association about the attorney general’s office.
Notes supplied.

43

788

Feb. 26, 2008

Lions Club, Hays, Kansas. I spoke to the group about the work of the attorney
general's office. Notes supplied.

Feb. 26, 2008

Fort Hays State University, Hays, Kansas, I spoke to students about the attorney
general 's office. Notes supplied.

Feb. 22, 2008

Washington Days Remarks, Topeka, Kansas, I spoke to an annual gathering of the
Kansas Democratic Party about my priorities for the attorney general’s office.
Notes supplied.

Feb. 9, 2008

Reno County Democratic Chili Feed, speech about plans for the attorney
general’s office. I have no notes, transcript or recording. The Reno County
Democratic Party’s address is P.O. Box 622, Hutchinson, Kansas 67504.

Feb. 7, 2008

Kansas Nurses Day, Topeka, Kansas, I spoke with nurses and nursing students
about the attorney general’s office. Notes supplied.

Feb. 6, 2008

Kansas Joint Law Enforcement Conference, Topeka, Kansas, I spoke with law
enforcement officials about the attorney general’s office and provided an update
on legislative issues. I have no notes, transcript or recording. The event was co-
sponsored by the Kansas Peace Officers Association, Kansas Association of
Chiefs of Police and the Kansas Sheriffs Association. The address of the KPOA
is P.O. Box 2592, Wichita, Kansas 67201 .

Feb. 5, 2008

Kansas Democratic Caucus, Lawrence, Kansas, I spoke to people caucusing about
changes for the attorney general’s office. I have no notes, transcript or recording,
but press coverage is supplied. The address of the Kansas Democratic Party is
P.O. Box 1914, Topeka, Kansas 66601.

Jan. 30, 2008

Attorney General Swearing-in Ceremony, Topeka, Kansas. Notes supplied.

2007

Free State High School, Lawrence, Kansas, 1 spoke to students at Free State High
School students about their responsibilities when they tum eighteen. I have no
notes, transcript or recording. The address of Free State High School is 4700
Overland Drive, Lawrence, Kansas 66049.

44

789

2007

Hillcrcst Elementary, Lawrence, Kansas, I spoke to elementary school children
about the judicial system. I have no notes, transcript or recording. Hillcrest
Elementary is located at 1045 Hilltop Drive, Lawrence, Kansas 66044.

2006

Douglas County Courthouse, Lawrence, Kansas, on several occasions 1 spoke to
elementary students about the judicial system. I have no notes, transcript or
recordings. The Douglas County Courthouse is located at 1 1 1 East 1 1th Street,
Lawrence, Kansas 66044.

Feb. 4, 2005

Swearing-In Remarks, District Court Judge, Lawrence, Kansas. Remarks
provided.

Apr. 2, 2004

Kansas City Metropolitan Bar Association, continuing legal education
presentation on Pronald v. Bridgestone Firestone. Notes provided.

Mar. 30, 2004

Kansas Bar Association, continuing legal education presentation on Taking the
Defendant’s Videotape Deposition and Using It at Trial. Overland Park, Kansas.
Notes provided. I gave this presentation again in 2004, but I have been unable to
obtain the date.

2004

Kansas Trial Lawyers Association, continuing legal education presentation on
Proving Damages in Auto Accident Cases. Lawrence, Kansas. Notes provided.

May 30, 2003

Kansas Bar Association, continuing legal education presentation on Comparison
on Comparison of Kansas and Missouri Medical Negligence Laws. Overland
Park, Kansas. Notes supplied.

June 2, 2002

Kansas City Metropolitan Bar Association, continuing legal education
presentation on Comparison on Comparison of Kansas and Missouri Medical
Negligence Laws. Kansas City, Missouri. I used the same materials as supplied
for the 2003 Kansas Bar Association CLE.

This list represents the public service announcements I have identified by
thoroughly searching my memory' and electronic and paper records. However, as
Attorney General I occasionally recorded PSAs for groups. For some of these
PSAs, I do not recall the date or group. This list, therefore, may not include all
PSAs.

45

790

2008 - 2010 Public Service Announcements (PSA)

Amber Alert training video, April 2009. Script supplied.

Amber Alert Radio, April 2009. Same script as above.

Amber Alert Video, April 2009. Same script as above.

Anti-Drug.com PSA, September 2010. Script supplied.

Drunk Driving Radio PSA, date unknown. Script supplied.

Entertainment Software Ratings Board PSA, June 3, 2009. Video supplied.

Hays, KS Identity Theft Shred-a-Thon PSA. Script supplied.

Kansas Amber Alert Wireless PSA, April 2009. Video supplied.

KORA/KOMA PSA, date unknown. Script supplied.

Netsmartz Family PSA, 2009. Video supplied.

Nctsmartz Family PSA, Mar. 14, 2008. Script supplied.

Stalking Training Video, date unknown. Script supplied.

AG Steve Six and Dara Torres, AskListcnLeam PSA, Aug. 10, 2010. Video
available at http://www.voutube.com/watch?v=DORnfR9GhqO .

e. List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.

I have searched my files and Internet databases to refresh my memory in an effort
to produce as complete a list of interviews as 1 could, but it is still possible there
are some I was not able to locate.

As a candidate for Attorney General of Kansas, my campaign set up a YouTube
channel with a selection of campaign ads, interviews, press conferences and new
stories. These videos are available at

http://www.voulube.eom/user/SteveSixAG#p/u/10/H.ThApxhlHck .

Roxana Hegeman, Six May Have io Wait to Take Federal Bench . Wichita Eagle,
Mar. 11,2011. Copy supplied.

George Diepenbrock, Steve Six Discusses Phelps Funeral Protest Case after Stint
as Kansas Attorney G eneral , Lawrence Journal World, Jan. 1 1, 2011. Video and
related news story available at
http://www2.liworld.com/videos/201 1/ian/l 1/33865/ .

Press release, Office of Attorney General Steve Six, Attorney General Reports
Record Consumer Protection and Medicaid Fraud Recoveries (Jan. 3, 2011).

Copy supplied.

Press release. Office of Attorney General Steve Six, “Operation Homestead” Nets
$2.8 Million for Kansas Consumers in Settlement with Wells Fargo (Dec. 8,
2010). Copy supplied.

46

791

Press release. Office of Attorney General Steve Six, Kansas Child Abduction
Response Team Becomes 1 0 ,!l in the Nation to be Certified by US Department of
Justice (Nov. 23, 2010). Copy supplied.

Roxana Hegeman, Vacancy Opens Up in Federal Judiciary in Kansas . Associated
Press, Nov. 15, 2010. Copy supplied.

Jim Salter, Former Owners of US Fidelis Settle with 11 States . Associated Press,
Nov. 8, 2010. Copy supplied.

Roxana Hegeman, Judge Tosses Out Lawsuit over Kan. Supreme Conn .
Associated Press, Nov. 4, 2010. Copy supplied.

Six Loses AG Race . KSN.com, Nov. 3, 2010. Copy supplied.

Tim Carpenter, Schmidt Ousts Six in AG Race . Topeka Capital-Journal, Nov. 3,
2010. Copy supplied.

GOP Wins Kansas AG. Sec, nf State and Treasurer Races . Eyewitness News 12,
Nov. 3,2010. Copy supplied.

John Hanna, Kan. De mo crats Lose 3 Statewide Incumbents Associated Press,
Nov. 3, 2010. Copy supplied.

Rhonda Holman, So They S aid. Wichita Eagle Blog, Oct. 3 1 , 2010. Copy
supplied.

Mike Pound, Kansas to Elect Governor, Other Statewide Officers . Joplin Globe,
Oct. 31,2010. Copy supplied.

Cand idate’s Favorite Books: Steve Six . Lawrence Public Library Book Blog, Oct.
29,2010. Copy supplied.

State’s Role in Healthcare Reform Law Becoming F o cus of Attorney General
C andidates . Lawrence Journal World, Oct. 27, 2010.

Monica Springer, Six Campaigns in Emporia . Emporia Gazette, Oct. 27, 2010.
Copy supplied.

Press release, Office of the Governor, Kansas Releases Strategic Plan to Combat
Metbamphetamine (Oct. 27, 20 10). Copy supplied.

Press Conference, early release for inmates, Oct. 26, 20 1 0. Related press
coverage is listed below:

47

792

Eric Swanson, Six Critical of Sentencing Board’s Plan . Wichita Eagle, Oct.
27,2010. Copy supplied.

AG Candidates Oppose Plan to Release Inmates Harlv . KSN.com, Oct. 26,

20 1 0. Video and related news story available at

http://www.ksn.coin/news/local/stnrv/ACi-eandidates-ODtiose-Dlan-to-rele ase-

inmates-earlv7YkNK5TFTJ06fxMbgRh8Ntg.cspx .

Kan. AG Opposes Reducing Prison Sentences . Associated Press, Oct. 26,
2010. Copy supplied.

Radio Interview, Friendly Fire, Oct. 26 , 2010. I have not been able to obtain a
copy of the recording. Press coverage with excerpts supplied.

Candidate countdown: Steve Six . KSNT.com, Oct. 25, 2010. Video available at
http://www. ksnt.com/se arch/vid eosearch. asp x?sea rch=%22steve+s i x%22.

Attorn ey General Sieve Six . Morning Sun. Oct. 24. 2010. Copy supplied.

David Klepper, Six. Schmidt on Ballot for Attorney General . Kansas City Star,
Oct. 23, 2010. Copy supplied.

Week Without Violence Continues with Statchouse Stand . KTKA, Oct. 22, 2010.
Video and related news story available at

http://www.ktka.co m/ne ws/20 10/oct/ 22/ week-witboul-violence-continues-
statehouse-stand/ .

John Milbum, Federal Issues Take Spotlight in Kan. AG Race . Associated Press,
Oct. 21, 2010. Copy supplied.

Rebecca Zepick, Vid eo: Fed Phelps Prays Harm for S tev e Six . State of the State
KS, Oct. 21, 2010. Video and related news story available at
- http ://state ofthestateks.com/2010/10/21/video-frcd-Dhelps-Dravs-haiTn-for-steve -
six-holland-henslev-and-davis-to-sign-education-nledge-toriav/ .

Tim Carpenter, Phe lps Prays A.G. is Punished . Topeka Capital-Journal, Oct. 21,
2010. Copy supplied.

Chat Live w ith Kansas Attorney General Steve Six . LJWorld.com, Oct. 20, 2010.
Copy supplied.

Suzie Gilbert, Westboro Baptist Church Attacks Steve Six , wibw.com, Oct. 20,
2010. Video and related news story available at

http://www.wibw.com/localnews/head1ines/Westboro Baptist Church Attack s S
teve Six 1 05395048.html .

48

793

Press release. Office of Attorney General Steve Six, Attorney General Six Pushes
Backpage.com for Additional Restrictions (Oct. 19, 2010). Copy supplied.

TV interview, Stephanie Hockridge, fox4kc.com, Kansas AG Reaches Settlement
with Company in Veteran Burial Scam . Oct. 19, 2010. Video available at
http://www.fox4 k c.com/wdaf-stoTv-veteran-burial-scam-settlement-
1 01 91 0. 0 .6238762, storv .

Kimber Wallace, Att orney General - Schmidt, Six Have Different Strategies for
Handling Laws u it Challenging Health Care . Manhattan Mercury, Oct. 1 8, 201 0.
Copy supplied.

Bob Beatty, The Mystery in the AG Race . Hutchinson News, Oct. 1 7, 2010.

Copy supplied.

Candidate Survey Lawrence Journal World, Oct. 15, 2010. Copy supplied.

Candidate Survey League of Women Voters, Oct. 14, 2010. Copy supplied.

Bill Wilson, Kansas Joins Foreclosure Investigation . Wichita Eagle, Oct. 14,

2010. Copy supplied.

Press conference on arrest of two on solicitation charges, Oct. 1 3, 20 1 0. Related
press coverage supplied:

Backpage Sting Yields 2 Arrests . Topeka Capital-Journal, Oct. 14, 2010.

Copy supplied.

Attorney General Steve Six Announces Pair of Electronic Solicitation Arrests.
R enews Call for Backcage.com to Crack Down on Advertising . El Dorado
Times, Oct. 13, 2010. Copy supplied.

Two Charged with Trying to Solicit Minors Online . Kansas City Star, Oct. 13,
2010. Copy supplied.

Maria Sudekum Fisher, Kan. AG: 2 Arrested in Online Ad Investigation .
Associated Press, Oct. 13, 2010. Copy supplied.

Two Charged in Intern et Child Prostitution Sting Operation in Wyandotte
County . Wyandotte Daily News, Oct. 13, 2010. Copy supplied.

Aaron Heintzelman, “2 men charged in sex sting connected to adult services
section of Backpage.com,” NBC Action News (Kansas City), Oct. 13, 2010.
Video available at http://www.nbeactionnews.com/dpp / news/crime/2-men-
charged-in-sex-sting-connected-to-adult-scrvices-seclipn-of-backDage.com .

49

794

“AG Pledges To Continue Fight Against Exploitation,” KCTV (Kansas City),
Oct. [3, 2010. Video available at
http://wwvv.kclv5.com / ncws/253 78760/detail.htmL

Steve Doocy, Inter view with Steve Six . Fox News Network, Oct. 12, 2010. Copy
supplied.

Attorney General Monitoring ‘Roho’ Calls . Newton Kansan, Oct. 12, 2010. Copy
supplied.

Press release, Office of Attorney General Steve Six, Attorney General Six
Congratulates Butler County Attorney Jan Satterfield on Being Named Prosecutor
of the Year by her Peers (Oct. 1 1 , 201 0). Copy supplied.

Press release. Department of Agriculture, Arbitrator Sides with Kansas in Dispute
over Republican River (Oct. 8, 2010). Copy supplied.

Press conference, Snyder v. Phelps Argument, Oct. 6, 2010. Related press
coverage is listed below:

Tricia Bishop, Protest’s Boundaries . Baltimore Sun, Oct. 7, 2010. Copy
supplied.

Kansas Attorney General Comments on Funeral Protest Case . KTKA, Oct. 6,
2010. Video available at htto://www.voutube.com/watch?v=d21FaOa Kvk .

Kansas Attorney General in D.C. for Phelns Supreme Court Case .
LJWorld.com, Oct. 6, 2010. Video available at
h ttp://www 2. li world. com/videos/201 0/oct/06/33036/ .

Lloyd Robertson. Antigav Protests . CTV News, Oct. 6, 2010. Transcript
supplied.

Michael Doyle, W estboro’s Attorney: In Court, Not Just Another Protester .
McClatchy Washington Bureau, Oct. 6. 20)0. Copy supplied.

Chris Matthews, Supreme Court to Hea r Phelns vs. Snyder . Hardball, Oct. 6,

2010. Copy supplied,

Tim Carpenter, Pickets on National Stage . Topeka Capital-Journal, Oct. 6, 2010.
Copy supplied.

Televised campaign address, KWCH. Wichita, Kansas. Video available at
http://www.kweh.eom/videobeta/4 I d 8b9c4-d3ae-4c90-bf0b-
18fa07f9cl9a/News/Free-Airtime-Steve-Six.

50

795

Steve Kraske, The Breakfast Buzz . Newstex Web Blogs, Oct. 5, 2010. Copy
supplied.

Press release, Office of Attorney General Steve Six, Kansas Attorney General, 49
AG’s Argue Snyder v. Phelps (Oct. 4, 201 0). Copy supplied.

TV interview, Steve Six Speaks to Topeka Lawyers, Oct. 1 , 201 0. Video
available at httn://www. youtube. com/watcb'?v=kupDlXi8 130 .

Candidate Survey El Dorado Times, Oct. 2010. Copy supplied.

Candidate Survey Kansas City Star, Ocl. 2010. Copy supplied.

Candidate Survey Lenexa Chamber of Commerce, Oct. 20 ! 0. Copy supplied.

Candidate Survey Topeka Capital-Journal, Oct. 2010. Copy supplied.

Candidate Survey Sabetha Herald, Oct. 2010. Copy supplied.

Candidate Survey Overland Park Chamber of Commerce, Oct. 2010. Copy
supplied.

Candidate Survey McPherson Sentinel, Oct. 2010. Copy supplied.

Candidate Survey Salina Journal, Oct. 2010. Copy supplied.

Jeannine Koranda, NRA Endorses Six for Attorney General . Wichita Eagle, Sept.
30,2010. Copy supplied.

John Milbum, Kan. Gov. Backs Fellow Democrat in AG’s Race . Associated
Press, Sept. 29, 2010. Copy supplied.

Press release, Steve Six for Attorney General, Kansas Governor Mark Parkinson
Endorses Attorney General Steve Six (Sept. 29, 2010). Copy supplied.

Press release. Office of Attorney General Steve Six, Kansas Recovers $4.76
Million as Part of Nationwide Settlement with Astra Zeneca over Deceptive
Marketing of Drug Seroque] (Sept. 28, 2010). Copy supplied.

Press release. Office of Attorney General Steve Six, AG Steve Six Urges Kansans
to Turn in Unused Prescription Drugs During National Take-Back Day (Sept. 24,
2010). Copy supplied.

Press release. Office of Attorney General Steve Six, New Child Predator Unit
Proposed by Attorney General Steve Six (Sept. 22, 2010). Copy supplied.

51

796

Press release. Office of Attorney General Steve Six, Attorney General Steve Six
and Colleagues Continue Effort to Crack Down on Online Human Trafficking
(Sept. 21, 2010). Copy supplied.

Press release, Steve Six for Attorney General, Public Safety Employees Across
Kansas Endorse Attorney General Steve Six (Sept. 20, 2010). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Steve Six
Targets Trading of Child Pornography, Unveils Operation Child Shield (Sept. 16,
2010). Copy supplied.

Press conference on Operation Child Shield. Related press coverage is listed
below:

Joe Lambe, Campaign Aims to Spread Awareness of Safe Havens that Let
Parents Surrender Newborns . Kansas City Star, Sept. 17, 2010. Copy
supplied.

Attorney General Says He’s Going After People who Deal in Child
Pornography . KTKA, Sept. 1 6, 20 1 0. Video available at
http://www.ktka.com/videos/2010/seD/16/30994/ .

Attorney General Cracking Down on Child Porn . ljworId.com, Sept. 16, 2010.
Video available at http://www2.liworld.com/videos/2010/sen/16/3268R/ .

David Klepper, Six Announces Child Pom Investigations . Newstex Web
Blogs, Sept. 16,2010. Copy supplied.

Attorney General Savs He A G oi ng After People Who Deal in Child
Pornography . LJWorld.com. Sept. 16,2010. Video and related new story
available at http.7/www2.1iworld.com/news/201 0/sen/1 6/attomev-general-
savs-hcs-going-after-neopic-who-d/?kansas legislature .

Suzie Gilbert, “KS AG Targets Electronic Child Pom,” WIBW (Topeka),
Sept. 16,2010. Video available at

http://wibw.videogenesis.net/watch?v=l 1 468&ref=embed .

Ron Sylvester, Judge: Kansas Supreme Court Justice Selection is Fine as It Is .
Wichita Eagle, Sept. 15, 2010. Copy supplied.

Roxana Hegeman, Judge Refuses to Bar Kan. Supr eme Cou rt Nomination ,
Associated Press, Sept. 14,2010. Copy supplied.

Kathleen Hart, 12 States Ask Supreme Court to Hear CQ2 Case of ‘Extraordinary
National Importance 1 . SNL Generation Markets Week, Sept. 14, 2010. Copy
supplied.

52

797

Press release, Office of Attorney General Steve Six, Attorney General Steve Six
Announces DNA Backlog Will be Eliminated, Has Been Reduced by 70% (Sept.
10,2010). Copy supplied.

Tim Potter, A.G. Six Will Personally Lead Great Bend Case . Wichita Eagle, Sept.
10,2010. Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Steve Six
Joins Supreme Court Brief in Support of Kansas Industry (Sept. 10, 2010). Copy
supplied.

Press release, Office of Attorney General Steve Six, Attorney General Steve Six
Guest Speaker at Leavenworth 9/11 Ceremony (Sept. 9, 2010). I do not have a
copy of this press release.

Tim Potter, Ex-Con Charged with Murder in Teen’s Death . Wichita Eagle, Sept.
8, 2010. Copy supplied.

Darcy Gray, Man Charged in Teen Girl’s Death . Hutchinson News, Sept. 8, 2010.
Copy supplied.

Bill Draper, Kansas Man Charged With Murdering Burned Teen . Associated
Press, Sept. 7, 2010. Copy supplied.

Capital Murder Charges Brought in Teen's Death . KSN.com, Sept. 7, 2009.

Video and related news story available at

http.7/www.ksn.com / news/local/storv/Capital-murder-charaes-brought-in-teens-

death/ZDCaR2MvaUuc8sSNWKVVXO.espx .

Aaron Heintzelman, “Suspect charged with capital murder and sodomy in death
of Kansas teenager Alica DeBolt,” NBC Action News (Kansas City), Sept. 7,
2010. Video available at

http://www.nbcactio n news.eom/dpp/news/state/k ansas/susnect-charged-wilh-
capital-murder-and-sodomv-i n-deat h-of-kansas-te enagcr-alica-debolt .

Press conference on DNA Backlog, Sept. 1, 20 1 0. Related press coverage listed
below:

Tim Carpenter, KB1 Addressing DNA Backlog . Topeka Capital-Journal, Sept.
2,2010. Copy supplied.

David Klepper, Shrinking DNA Backlog at Ka ns as St at e Crim e Lab . Prime
Buzz, Sept. 1,2010. Copy supplied.

53

798

Staff, Six Savs DNA Backlog at KBI Crime Labs Nearly Over . Wichita Eagle,
Sept. 1,2010. Copy supplied.

John Milbum, Kansas AG: DNA Backlog Shrinking . Associated Press, Sept.

1 , 2010. Copy supplied.

“Kansas Attorney General announces progress in DNA backlog,” KWCH
(Wichita), Sept. 1, 2010. Video available at
hnD://www.kwch.com/vidcobeta/94f6f6b5-2d42-435f-9Sf4-
0675aabcfc68/News/Kansas-Attomev-General-announces-Drogrcss-in-DNA-
backlog .

“Kansas Lab Getting Help With DNA Case Backlog,” KCTV (Kansas City),
Sept. 1,2010. Video available at
httn://www.kctv5.com/news/2484S06S/detail.html .

Rick Plumlee, Judge’s Ruling Extends Smoking Ban to Wichita . Wichita Eagle,
Sept. 1,2010. Copy supplied,

John Hanna, Choice of Kan. Justice Proceeds Under Legal Cloud . Associated
Press, Sept. 1,2010. Copy supplied.

Judge Rejects Bid to Exempt Wichita in Smoking Ban . Associated Press, Aug. 31,
2010. Copy supplied.

Press conference on Longoria Hearing, Aug. 30, 2010. Related press coverage is
listed below:

Tim Potter, Six : We Will Charge Somebody with Murder . Wichita Eagle,

Aug. 31,2010. Copy supplied.

Darcy Gray, Bond Set at $150.000 . Hutchinson News, Aug. 31 , 2010. Copy
supplied.

Tim Potter, Six ‘Confident Murder Charges Will Be Filed’ in Teen’s Death .
Wichita Eagle, Aug. 30, 2010. Copy supplied.

Bond Set at S1S0K for Person of Interest at Girl’s Murder . KSN.com, Aug.

30, 201 0. Video and related news story available at
h ttn://www.ksn.com/news/loeal/5torv/Bond-set-at-150K-for-nerson-of-
interest-in-girls/TIIq9ruOn EeLia-PLavVpoE.cspx .

Nancy Grace and Ellie Jostad. Paris Hilton Busted Again . Nancy Grace Show,
Aug. 30, 2010. Transcript supplied.

54

799

Darcy Gray, Great Bend Suspect Makes First Appearanc e. Hutchinson News,
Aug. 30, 2010. Copy supplied.

“News Conference; Attorney General Steve Six,” KWCH (Wichita), Aug. 30,
20 1 0. Video available at http://www.kwch.com/vid e obeta/34 1 9d04b -a a8d-
49f5-bec4-95747344fca0/Ncwx/News-Conference-Attomev-General-Steve-
Six.

John Hanna, Kan. Board Rejects Independent’s Bid for Congress . Associated
Press, Aug. 28. 2010. Copy supplied.

Press release, Office of Attorney General Steve Six, ALERT - Person of Interest
Identified in Alicia Debolt Case, Attorney General Steve Six Seeks Public's
Assistance in Locating Individual (Aug. 27, 2010). Copy supplied.

Press Conference on DeBoIt case, Aug. 26, 2010. Video of the conference is
available at http://www.blip.tv/file/4050313 . Additional press coverage of my
remarks is listed below:

Tim Potter, Teen’s Death Wasn’t Random. Six Savs . Wichita Eagle, Aug. 27,
2010. Copy supplied.

Darcy Gray, Body Confirmed as Teen’s . Hutchinson News, Aug. 27, 2010.
Copy supplied.

Roxana Hegeman, Kan. Coroner Identifies Charred Body as Teen Girl .
Associated Press, Aug. 26, 2010. Copy supplied.

Body Found West of Great Bend Identified as Missing 14-Year-Old .
LJWorld.com, Aug. 26, 2010. Video available at
http:/ /www2 .l iworld.com/videos/2010/aug/26 /3 2320/ .

Nancy Grace, Burned Body Identified as Missing Teen Cheerleader . Nancy
Grace Show, Aug, 26, 201 0. Copy supplied.

Theresa Freed, “Body Found West of Great Bend Identified as Missing 14-
Year-OId,” Lawrence Journal World (Aug. 26, 2010). Video available at
ht tp://www2.liworld.com/vi d eos/2010/aug/26/32320/ .

“Press Conference: Attorney General Steve Six on Alicia DeBolt murder,”
KWCH (Wichita), Aug. 26, 2010. Video available at
http://w ww.kwch.com/videobeta/2a8dbd 1 8-97 0 4-4h5a-b9bd-
£2a4a9dcl 039/News/Press-Conference- Attomev-General-Steve-Six-on-
Alieia-DeBolt-murder .

55

800

Craig Andres, Kansas AG Asks Craigslist to Remove Adult Ads . KSN.com, Aug.
24,2010. Copy supplied.

Theresa Freed, “Attorney General Sends Craigslist Letter,” Lawrence Journal
World (Aug. 24, 2010). Video available at
httD://mvw2.1iworld.com/videos/2010/aug/24/32287/ .

Kansas AG Asks Craigslist to Remove Adult Ads . KTKA, Aug. 24, 2010. Video
available at http://wwtv.ktka. com/videos / 201 0/aug/24/30720/ .

Press release, Office of Attorney General Steve Six, Attorney General Steve Six
Joins Colleagues in Calling on Craigslist to Scrap Adult Services Section (Aug.
24,2010). Copy supplied.

TV interview, Attorney General Sends Craigslist Letter . LJWorld.com, Aug. 24,
2010. Video available at httn,//www2. liwotld. com/videos/20 10/aug/24/32287/ .

Press conference on Operation Cooperation, Aug 1 8, 201 0. I spoke about
rounding up parole absconders. Notes supplied and related press coverage is
listed below:

Jearmine Koranda, Statewide Parole Sting Nabs 42 Offenders . Wichita Eagle,
Aug. 19, 2010. Copy supplied.

Jeannine Koranda, Crackdown on Parolees Results in 42 Arrests . Wichita
Eagle, Aug. 18,2010. Copy supplied.

Dozens of Parole Violators Arrested . KSN.com, Aug. 18, 2010. Copy
supplied.

Press release. Office of Attorney General Steve Six, Officers from Department of
Corrections, Attorney General’s Office Nab 42 Wanted Suspects (Aug. 18, 2010).
Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Steve Six -
Kansas’ Funeral Picketing Law is Constitutional (Aug. 16, 2010). Copy supplied.

Press release, Office of Attorney General Steve Six, State General Fund Budget
Cut in Half, New Records Set by Kansas Attorney General Steve Six on Behalf of
Consumers and Medicaid (Aug. 10, 2010). Copy supplied.

Pressrelease, Office of Attorney General Steve Six, Attorney General Steve Six
Joins 33 AGs to Announce TOPDC.COM Agreement that Stops “Pay-To-Police”
Policy (Aug. 9, 2010). Copy supplied.

56

801

John Hanna, Former Kan. Supreme Court Chief Justice Dies . Associated Press,
Aug. 5, 2010. Copy supplied.

Video for “Ask, Listen, Learn” program of Century Council, Aug. 5, 2010. Video
available at httn://www. youtube. coro/watch?v=DORnfR9G h qO .

State Attorney Gener a l Takes Over Pittsburg Case . Associated Press, July 30,
2010. Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Six,
National Center for Missing & Exploited Children Seek to Raise Awareness of
New Law Benefitting Victims of Child Pornography (July 22, 2010). Copy
supplied.

Press release, Office of Attorney General Steve Six, Attorney General Steve Six
Warns Political Campaigns About Robo-Calls (July 20, 2010). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Steve Six
Expresses Disappointment in Federal Lawsuit against Arizona (July 14, 2010).
Copy supplied.

Press release, Office of Attorney General Steve Six, Lauren Holle, Marysville,
Pleads Guilty to Second-Degree Intentional Murder in Death of Newborn (July 7,
2010). Copy supplied.

Matthew Clark, El Dorado's The Office Included in Smoking Ban Inju n ction . El
Dorado Times, July 2, 2010. Copy supplied.

David Klepper, Kansas Smoking B an Takes Effect Today . Kansas City Star, July
1 , 2010. Copy supplied.

John Milbum, Kan A G: Block of Smokinp Ban Has Limited Effect . Associated
Press, July 1, 2010. Copy supplied.

Jeannine Koranda, Wichita Bars Among Ex c eptions to New Law . Wichita Eagle,
July 1,2010. Copy supplied.

Press release. Office of Attorney General Steve Six, Consumer Alert: As
Independence Day Approaches, Be Informed When Donating to Veterans
Charities (July 1, 2010). Copy supplied.

Jeannine Koranda Judge Bars Smoking Ban from Applying to Priva t e Clubs, the
Rest of Kansas G oes Smoke Free at Midnight . Wichita Eagle, June 30, 2010.

Copy supplied.

57

802

Darcy Gray, Impact on Kansas Will be Minimal. Officials Say . Hutchinson News,
June 29, 2010. Copy supplied.

Matthew Clark, Kansas Reaction to Supreme Court Ruling on Second
Amendment . Morning Sun, June 28, 2010. Copy supplied.

Press release. Drug Enforcement Administration’s St. Louis Field Office,
Haysville Doctor, Wife Guilty in Deadly Prescription Overdoses (June 25, 2010).
Copy supplied.

Press release, Steve Six for Attorney General, Steve Six Endorsed by Kansas Law
Enforcement (June 17,2010). Copy supplied.

John Milbum, Gov Wants Scandals Re s olved Quickly . Hutchinson News, June 5,
2010. Copy supplied.

“Attorney General discusses KU controversy,” Lawrence Journal World, June 3,
2010. Video available at http://www2.Iiworld.eom/vidcos/20I0/iun/03/30968/ .

Statehouse Live: Six Hopes KU Athletic Department Probe Produces More
Transparency . LJWorld.com, June 3, 201 0. Video available at
http://www2 Ji world.com/vi d eos/2fl 10/iun/03/30968/ .

Attorney General Discusses KU Controversy . LJWorld.com, June 3, 201 0. Video
available at h ttn://www2.1i world. com/vidcos/201 0/i un/03/30968/ .

Atto rney General Steve Six Filing Amicus Brief in the Case of Snyder v. Phelps .
KTKA, June 1, 2010. Video available at
http://www.ktka.com/videos/201 0/i u n/0 1 /29706 / .

Press release, Steve Six for Attorney General, General Six Leads 48 States in
Effort to Protect Mourning Families from Hateful Phelps Picketing (June 1 ,

2010). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Steve Six
Files Amicus Brief in the Case of Snyder v Phelps (June 1, 2010). Copy supplied.

TV interview, AG Six Filing Leg a l Brief Against Church . LJWorld.com, May 3 1 ,
201 0. Video available at http://www2.liworld.com/videos/201 Q /mav/31/30910/ .

Press release, Office of Attorney General Steve Six, Attorney General Six
Recognizes National Missing Children’s Day (May 24, 2010). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Six,
Secretary of Aging Kennedy Warn Seniors of Medicare “Donut Hole” Fraud
Schemes (May 24, 2010). Copy supplied.

58

803

Ron Sylvester. Wait for Test Results from Kansas DNA Labs Can be Long .
Wichita Eagle, May 21, 2010. Copy supplied.

Kan. AG Readies Brief in Funeral Protest Case . KTKA, May 19, 2010. Video
available at http://www.ktka.com/videos/2010/mav / 19/29578/ :
http://wvvw.ktka. com/videos/201 0/mav/l 9/29580 / .

Lauren Seabrook, “AG Six joins fight against church,” Lawrence Journal World,

May 19, 2010. Video available at

http://vvww2.li world, com/videos/20 10/mav/] 9/30706/ .

Press release. Office of Attorney General Steve Six, Kansas Attorney General
Steve Six Asks Colleagues to Join Him in Supporting Marine Lance Corporal
Matthew Snyder’s Family (May 19, 2010). Copy supplied.

TV interview, AG Six Joins Fight Against Church . LJWorld.com, May 19, 2010.
Video available at httn://www2.liworld. com/videos/ 2 01 0/mav/19/30706/ .

TV interview. Attorney Genera l Writing Brief for Kansan fsici Sning Westboro
Baptist Church . JJWorld.com, May 18, 2010. Video available at
http://wwvv2.liworld.eom/videos/2010/niav/l 8/30684/ .

Press release. Office of Attorney General Steve Six, Federal Sex Offender Law
Supported by AG Six Upheld by Supreme Court (May 1 7, 201 0). Copy supplied.

Press release. Office of the.Govemor, Governor Parkinson Expands Rights to
Victims of Child Pornography (May 13, 2010). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Steve Six
Part of 23-State Coalition Urging Topix.Com to Improve (May 13, 2010). Copy
supplied.

Press release. Office of Attorney General Steve Six, Batterer Intervention
Programs Certified (May 12, 2010). Copy supplied.

Kaley Conner, Six Says Taking Water Fig ht t o Sup r eme Court ‘Right Thing’ to
Do . Flays Daily News, May 1 1, 2010. Copy supplied.

Steve Six Q&A, Manhattan Mercury, May 10, 2010. Video available at
http://www.inkbarreltv.com / inkbarrelCMS/svstem/networks/ks manhattan mercu
rv/index.DhD?id~0 xew8qtwv .

Press release, Office of Attorney General Steve Six, Kansas and 16 Other States
Move to Join Suits Against Pharmaceutical Giant Wyeth (May 1 0, 201 0). Copy
supplied.

59

804

Russell Receives Outstanding Victim Advocate Award from AG . El Dorado
Times, May 10, 2010. Copy supplied.

Legal Community Celebrates Law Day . LJWorld.com. May 3. 2010. Video
available at http://www2.1iworld.com/vide os /201 0/mav/03/30398/ .

Press release, Office of Attorney General Steve Six, Kansas Asks Supreme Court
to Direct Nebraska to Comply with Republican River Compact (May 4, 2010).
Copy supplied.

Survey for American Tort Reform Association, May 4, 2010. Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Six
Applauds Parkinson’s Actions to Safeguard Private Information (Apr. 30, 2010).
Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Six
Announces Lawsuits Against Deceptive Extended Auto Warranty Companies
(Apr. 29, 2010). Copy supplied.

Press release. Office of Attorney General Steve Six, Kansas receives $807,000 as
Part of Nationwide Settlement with Omnicare, Inc. and IV AX Pharmaceuticals,
Inc. (Apr. 27, 2010). Copy supplied.

Press release, Office of Attorney General Steve Six, Wichita Woman Pleads
Guilty to Defrauding Medicaid for $3.76 Million (Apr. 27, 2009) Copy supplied.

Press release, Office of Attorney General Steve Six, Consumer Alert: Beware of
Summertime Scams by Unscrupulous Solicitors (Apr. 23, 2010). Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Presents
2010 Victims Service Awards, Applauds Statewide Efforts At Conference (Apr.
22,2010). Copy supplied.

Attorney General Addresses Problems with Cuts in Safety Program .
LJWorld.com, Apr. 22, 2010. Video available at
http://www2.li world. com/videos/2010/anr/22/3Q 1 98/ .

Attorney General Six One Step Closer in Ge t ting Back a Treatment Program for
Violent Sex Predators . KTKA, Apr. 22, 2010. Video available at
httn://www.ktka.com/videos/2010 /a pr/2 2/29225/ .

Press release. Office of Attorney General Steve Six, Emporia Woman Sentenced
for Medicaid Fraud, Ordered to Pay Restitution (Apr. 21, 2010). Copy supplied.

60

805

Matthew Clark, Governor. AO to Host Crime Victims’ Rights Conference .
Morning Sun, Apr. 20, 2010. Copy supplied.

Press release. Office of Attorney General Steve Six, Kansas Attorney General’s
Office Cracks Down on Sales of Illegal Cigarettes Over the Internet with
Operation Cybersmoke (Apr. 19, 2010). Copy supplied.

Press release, Office of Attorney General Steve Six, Kansas Attorney General,
Secretary of Agriculture Advises Restaurant Owners to be on Alert for Suspicious
Calls (Apr. 15, 2010). Copy supplied.

Darcy Gray, Tailing Susnects Goes Hiuh-Tech . Hutchinson News, Apr. II , 20 1 0.
Copy supplied.

Press release, Office of Attorney General Steve Six, Kansas Enters into
Assurances of Voluntary Compliance with Valero and Santa Fe Tobacco
Company (Apr. 8, 2010). Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Completes
Legal Review Of Federal Health Care Legislation (Apr. 2, 2010). Copy supplied.

Press release, Office of Attorney General Steve Six, Emily Sander’s Murderer
Sentenced to Life, Plus 203 Months (Mar. 31, 2010). Copy supplied.

David Klepper, Jenkins to Six . McClatchy-Tribune Regional News, Mar. 24,

2010. Copy supplied.

Staff, Opponents Work to Block Health Bill at State Level . Wichita Eagle, Mar.
23,2010. Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General to Host
Open Government Workshops (Mar. 15, 2010). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Encourages
Safety During Spring Break (Mar. I], 2010). Copy supplied.

Joint Press Conference, Mortgage Fraud, Kansas City, Missouri. I spoke about
fighting mortgage fraud, Mar. 8, 2010. Notes supplied. Video available al
htlp://www.voutube.com/watch?v=ssH6RleG69Y .

Leah Osoba, L e Tiny P ieces for Peace of Mind: Shred-A-Thon Helps Prevent ID
Theft . Wichita Eagle, Mar. 6, 2010. Copy supplied.

David Klepper, The Jov of Sh red ding , Prime Buzz, Mar. 3, 2010. Copy supplied.

61

806

Press release. Office of Attorney General Steve Six, Attorney General’s Statement
on Senate's Death Penalty Vote, Feb. 1 9, 2010. Copy supplied.

Press release. Office of Attorney Genera] Steve Six, AG’s Column: Robo-Call
Protection Needed for Kansans (Feb. 1 8, 201 0). Copy supplied.

Press release. Office of Attorney Genera] Steve Six, Batterer Intervention
Programs Certified (Feb. 15, 2010). Copy supplied.

Editorials - Back to Court . LJWorld.com. Feb. 13,2010. Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Responds
to the Court’s Decision in the Montoy Case (Feb. 12, 2010). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Gets Guilty
Verdict in El Dorado Murder (Feb. 1 2, 2010). Copy supplied.

Press conference to announce Mirelcs trial verdict, Feb. 12, 2010. Video
available at http://videos.kansas.com/vmix hosted anns/o/mcdia?id =1 0425444 .

Press release, Office of Attorney General Steve Six, Multi-Jurisdictional Meth
Bust Nets 20 (Feb. 3, 2010). Copy supplied.

Press Conference on methamphetamines, Topeka, Kansas, Feb. 3, 2010. I spoke
about fighting methamphetamine sales. Notes supplied.

Press release, Office of Attorney General Steve Six, Consumer Alert: Attorney
General Warns Kansans of Debt Collection Scam (Jan. 29, 2010). Copy supplied.

Press release, Office of Attorney General Steve Six, Consumer Alert: AG Six
Encourages Kansans to Recognize the Importance of Data Privacy (Jan. 28,

2010). Copy supplied.

Suzie Gilbert. AG Wants to Protect Seniors fro m Scams . WIBW.com, Jan. 25,
2010. Copy supplied.

Press conference on Senior Consumer Advisory Council, Jan. 25, 2010. Video
available at http:/ / www. voutube.com/walch ?v=nK HcTRHTmF-

Press release, Office of Attorney General Steve Six, Attorney General to Host
Free Consumer Summit (Jan. 21, 2010). Copy supplied.

Press release. Office of Attorney General Steve Six, AG Six to Host Student
Consumer Workshops During National Consumer Protection Week (Jan. 20,

2010). Copy supplied.

62

807

Jim Sullinger, KBI Has Backlog of 35.000 DNA Samples. Attorney General Says .
Kansas City Star, Jan. 15, 2010. Copy supplied.

Press release, Office of Attorney General Steve Six, Consumer Alert: Attorney
General Six Cautions Consumers Regarding Haiti Earthquake Relief Requests
(Jan. 14, 2010). Copy supplied.

Stan Finger, Inma n Police Chief Arrested. Accused of Child Sex Crimes . Wichita
Eagle, Jan. 13, 2010. Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Six
Recognizes Amber Alert Awareness Day (Jan. 13, 2010). Copy supplied.

John Milbum, Kan. AG Writes Reid. Pelosi over Health Care . Associated Press,
Jan. 13,2010. Copy supplied.

Press release. Offi ce of Attorney General Steve Six, AG Encourages Parents to
Take Advantage of Available Parental Control Technology (Jan. 12, 2010). Copy
supplied.

Press release. Office of Attorney General Steve Six, Attorney General Six Creates
Human Trafficking Advisory Board (Jan. 1 1, 2010). Copy supplied.

Press release, Office of Attorney General Steve Six, AG Six Announces 2010
Legislative Agenda (Jan. 8, 2010). Copy supplied.

Ron Sylvester, DNA Backing Could Hurt Public Safety . Wichita Eagle, Dec. 28,
2009. Copy supplied.

Press release. Office of Attorney General Steve Six, AG Announces Lamed
Hospital Agreement (Dec. 23, 2009). Copy supplied.

Press release. Office of Attorney General Steve Six, Column: Domestic Violence
Still a Growing Problem (Dec. 21, 2009). Copy supplied.

Ron Sylvester, Legislature to Consider End to Death Penalty . Wichita Eagle, Dec.
19, 2009. Copy supplied.

Rick Babson, Mirror on Olathe: Kansas Attorney General Has Dealt with Budget
Crisis Well . Kansas City Star, Dec. 19, 2009. Copy supplied.

Rhonda Holman, Low-Profile Six Still a Nice Change . Wichita Eagle, Dec. 18,
2009. Copy supplied.

Press release. Office of Attorney General Steve Six, Law Enforcement Highlights
Safety During Winter Break (Dec. 15, 2009). Copy supplied.

63

808

Press release, Office of Attorney General Steve Six, Attorney General Announces
Success in Operation Homestead (Dec. 14, 2009). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Steve Six:
15 Charged In Identity Theft Operation (Dec. 10, 2009). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Steve Six
Provides Consumer Tips for Holiday Shopping (Dec. 2, 2009). Copy supplied.

Ron Sylvester, Kansas Courts Brace for S3 Million Budget Cut . Wichita Eagle,
Nov. 27, 2009. Copy supplied.

Tim Potter, Concealed-Carry Quietly in Effect . Wichita Eagle, Nov. 27, 2009.
Copy supplied.

Press release, Office of Attorney General Steve Six, AG Six Continues Fight to
Stop Mortgage, Foreclosure Fraud (Nov. 24, 2009). Copy supplied.

Press conference on Kansas Lottery Sting Operation, Topeka, Kansas, Nov. 23,
2009. I spoke about the investigation into the Kansas Lottery. Notes supplied.

Press release. Office of Attorney General Steve Six, AG’s Statement on
Governor’s Budget Cuts (Nov. 23, 2009). Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Charges 6
for Attempted Theft in Lottery Sting (Nov. 23, 2009). Copy supplied.

John Green, AG Eves Change for Cemetery Funds: Six is Also Concerned with
State's Costly DNA Sample Requirements . Hutchinson News, Nov. 20, 2009.
Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Six
Releases Annual Report for Attorney General’s Office (Nov. 17, 2009). Copy
supplied.

Press release, Office of Attorney General Steve Six, Attorney General Six
Announces Settlement with Vonage (Nov. 1 6, 2009). Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General, Cox
Communications, Kansas Internet Crimes Against Children Taskforce Partner to
Help Kids Stay Safe (Nov. 12, 2009). Copy supplied.

Press release, Offiee of Attorney General Steve Six, Hogan’s Pharmacy Owners
Found Guilty in Internet Pill Mill Scheme (Nov. 2, 2009). Copy supplied.

64

809

Tim Carpenter, Mom Wants Stat e to Include Such Offenders on the KBI’s
Registry . Topeka Capital-Journal. Nov. 1,2009. Copy supplied.

Press release, Office of Attorney General Steve Six, Aircraft Transporting Drugs
Busted in Liberal (Oct. 29, 2009). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Six Hosts
Conference on Parental Controls (Oct. 26, 2009). Copy supplied.

Kevin Elliott, KB1 Fights Backlog of DNA Tests . Topeka Capital-Journal, Oct.
25, 2009. Copy supplied.

Press release. Office of Attorney General Steve Six, Crawford County Woman
Pleads Guilty to Financially Exploiting an Elderly Woman (Oct. 21, 2009). Copy
supplied.

Press release, Office of Attorney General Steve Six, Attorney General’s Column:
The Real Consequences of Cutting Public Safety Budgets (Oct. 14, 2009). Copy
supplied.

Press release, Office of Attorney General Steve Six, AG Announces Donations to
Improve Mental Health Services (Oct. 9, 2009). Copy supplied.

Press release. Office of Attorney Genera! Steve Six, Judge Rules Kandu
Challenge Illegal Gambling (Oct. 9, 2009). Copy supplied.

Judge; No Kandu . KSN.com, Oct. 9, 2009. Video and related news story
available at http://www.ksn.com/nevvs/local/storv/Judge-No-Kandii/EnMvbRG-
gEK v L AdZlh08w.csax.

Press release, Office of Attorney General Steve Six, Recognize Domestic
Violence Awareness Month (Oct. 7, 2009). Copy supplied.

Press release, Office of Attorney General Steve Six, Law Enforcement
Encourages Vigilance During Fall Break (Oct. 2, 2009). Copy supplied.

Press release, Office of Attorney General Steve Six, AO Six Announces $ 1
Million Kansas Meth Initiative (Sept. 29, 2009). Copy supplied.

Attorney Gene r al Releases Statement on Deputy Death . KSN.com, Sept. 28,
2009. Copy supplied.

Press release. Office of Attorney General Steve Six, Consumer Alert: Veterans
Target of New Scam (Sept. 28, 2009). Copy supplied.

65

810

Tim Potter and Jeannine Koranda, Parents, Women Alerted about College Rapist .
Wichita Eagle, Sept. 27, 2009. Copy supplied.

Press release, Office of Attorney General Steve Six, Carbondalc Couple Pleads
Guilty to Medicaid Fraud (Sept. 25, 2009). Copy supplied.

David Klepper, Two Kansas Lawmakers Seek Probe into Whether Officials
Committed Med ica id Fraud . Kansas City Star, Sept. 25, 2009. Copy supplied.

Press release. Office of Attorney General Steve Six, Six Announces Creation of
the Senior Consumer Advisory Council (Sept. 23, 2009). Copy supplied.

Cardroom to Reopen Without Kandu- For Now . KSN.com, Sept. 1 1 , 2009.
Video and related news story available at

http://'www.ksn.com/ncws/local/storWCardroom-to-reopen-without-Kandu-for-
now/K PfF.hU FKskezGccZ 7 vl ,G YA.cspx .

Press release, Office of Attorney General Steve Six, Attorney General Steve Six
and the Kansas State Child Death Review Board Promote Kansas Safe Haven
Law (Sept. 8, 2009). Copy supplied.

Press release. Office of Attorney General Steve Six, Column: Budget Cuts Could
Weaken Public Safety (Sept. 8, 2009). Copy supplied.

Andrew Nash, AG Six Shares Thoughts on State . Morning Star, Sept. 4, 2009.
Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Six, Other
States Reach Consumer, Medicaid Fraud Settlement with Pfizer Inc. (Sept. 2,
2009). Copy supplied,

Press release. Office of Attorney General Steve Six, Attorney General, Police
Departments to Host Personal Safety Forum at KU and K-State (Sept. 1, 2009).
Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General’s Tobacco
Enforcement Unit Obtains $2.6 Million in Judgments (Aug. 31, 2009). Copy
supplied.

Press release. Office of Attorney General Steve Six, Attorney General to Host
Consumer Seminar at the State Fair (Aug. 27, 2009). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Files
Lawsuit to Protect Local Hospital, Aug. 26, 2009. Copy supplied.

66

811

John Hanna, Opponent s Still Want to Restrict Kan. Adult Stores . Associated
Press, Aug. 13, 2009. Copy supplied.

Press release. Office of Attorney General Steve Six, Lion’s Den Litigation
Concluded (Aug. 1 1, 2009). Copy supplied.

Press Group Wants Kansas to Unseal Affidavits . Associated Press, Aug. 2, 2009.
Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Establishes
Silver Alert Protocol (July 30, 2009). Copy supplied.

Press release. Office of Attorney General Steve Six, Kansas Responds to
Arbitrator’s Decision on Nebraska’s Overuse of Republican River Water (July 30,
2009). Copy supplied.

Press conference on Omnibus Crime Bill, July 27, 2009. Related press coverage
is listed below:

Tim Carpenter, Teen’s Close Call Inspires Law Reform . Topeka Capital-
Journal, July 28, 2009. Copy supplied.

Governor. Attorney General in Lawrence for Recognition of New Law on
E luding Police . LJWorld.com, July 27, 2009. Copy supplied.

Press release, Office of the Governor, Governor Parkinson Promotes
Increased Safety in Kansas, July 27, 2009. Copy supplied.

S ex Offender Inspires Chang e to Omnibus Crime Bill . KSN.com, July 27,
2009. Copy supplied.

Press release, Office of Attorney General Steve Six, Kansas AG Cracks Down on
“Guaranteed” Grant Scheme (July 23, 2009). Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Six
Announces $S.9 Million Settlement with DISH Network (July 16, 2009). Copy
supplied.

Press release. Office of Attorney Genera] Steve Six, Attorney General Six Joins
‘Operation Loan Lies’ to Stop Fraud and Help Distressed Homeowners (July 1 5,
2009). Copy supplied.

Press release. Office of Attorney General Steve Six, Wichita Woman Sentenced
for Defrauding Medicaid for $3.76 Million (July 13, 2009). Copy supplied.

67

812

Press release. Office of Attorney General Steve Six, Column: Working for Justice
(July 13, 2009). Copy supplied.

Press conference on mortgage fraud, Topeka, Kansas, July 7, 2009. I spoke about
the work of the attorney general's office to fight mortgage fraud. Notes supplied.
Video available at htto://wvvw. youtube, comAvatch?v=S8DxGe444tO .

Press release. Office of Attorney General Steve Six, Operation Homestead: AG
Six Goes After Mortgage Fraud and Scams Targeting Kansans (July 7, 2009).
Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Six’s
Comments on the Arbitrators’ Report on the Republican River Dispute (July 1,
2009). Copy supplied.

Press release, Office of Attorney General Steve Six, AG Takes Position on Illegal
Gambling (June 30, 2009). Copy supplied.

AG: Kandu Won’t Do . KSN.com, June 26, 2009. Video and related news story
available at http://www.ksn.com/news/local/slorv/AG-Kandu-wont-
do/13ZOzsiTOEuLir-lRDI8n0.esnx .

“Kan. Supreme Court Rejects Car Searches,” NBC Action News (Kansas City),
June 26, 2009. Video available at

http://www2.nbcactionnews.com/dpD/news/local news/Kan.-Supreme-Court-
Reiects-Car-Searches .

Press release. Office of Attorney General Steve Six, Wilson Receives Maximum
Sentence for Osborne County Homicide (June 23, 2009). Copy supplied.

Press release. Office of Attorney General Steve Six, Column: Open Government
Education Important to Kansans (June 22, 2009). Copy supplied.

Press release, Office of Attorney General Steve Six, AG Recognizes National
Internet Safety Month (June 18, 2009). Copy supplied.

Press release, Office of Attorney General Steve Six, New Chrysler Group LI.C
Will Honor “Lemon Law” Obligations (June 5, 2009). Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Steve Six
Launches PSA Campaign on Video Game Ratings (June 3, 2009). Copy supplied.

Statements on George Tiller’s Death . Wichita Eagle. May 31 2009 Copy
supplied.

68

813

Press release, Office of Attorney General Steve Six, Attorney General Receives
Patriot Award for Employer Support of the Guard and Reserve (May 29, 2009).
Copy supplied.

Tim Carpenter, Ca r Title Scam Ends in Penalty , cjonline.com, May 28, 2009.
Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Wins
Lawsuit against Utah Company (May 28, 2009). Copy supplied.

Press release, Office of Attorney General Steve Six, KORA KOMA Workshop
Deadline Approaching (May 22, 2009). Copy supplied.

Press release, Office of the Governor, Governor Parkinson Signs Omnibus Crime
Bill, May 21, 2009. Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Creates
Child Abduction Response Team Program, Recognizes National Missing
Children’s Day (May 21, 2009). Copy supplied.

Press release, Office of Attorney General Steve Six, Six Joins “Operation False
Charity” Law Enforcement Sweep (May 20, 2009). Copy supplied.

Press release. Office of Attorney General Sieve Six, AG Gels Guilty Verdict in
Murder Case (May 1 9, 2009). Copy supplied.

Dave Helling, Trov Findley is Picked as Kansas Lieutenant Governor, but He
Won’t Run for G o vernor Next Year . Kansas City Star, May 15, 2009. Copy
supplied.

Press release, Office of Attorney General Steve Six, Pharmacist Found Guilty in
Internet Pill Mill Scheme (May 14, 2009). Copy supplied.

Murdered Farmer's Wife Gives Tearful Testimony on Trial’s First Day .
KSN.com, May 13, 2009. Video and related news story available at
http:/Ayww.ksn.com/news/loca l /storv/Murdered-fanners-wife-gives-tearful-
testimonv-on/aBg2CKlmR0q Mue2xn8vkA.cspx .

Press release, Office of Attorney General Steve Six, Scammers Take Advantage
of Swine Flu Fears (May 11, 2009). Copy supplied.

Press release. Office of Attorney General Steve Six, US Supreme Court Sides
with AG in Kansas v. Vcntris Case (Apr. 29, 2009). Copy supplied.

69

814

Press conference on mortgage foreclosure, Kansas City, Kansas, Apr. 27, 2009. I
spoke about consumer protection and the problem of mortgage foreclosure. Notes
supplied. Video available at hUp://www.voutubc,com/watch?v=WrBLwOX3dxs .

Press release. Office of Attorney General Steve Six, Wichita Woman Pleads
Guilty to Defrauding Medicaid for $3.76 Million (Apr. 27, 2009). Copy supplied.

Mark Boyle, Attorney General Addresses Problems with Cut in Safety Program .
Lawrence Journal World, Apr. 22, 2009. Video available at
http://www2.livvorld.com/videos/2010/anr/22/3Q198/ .

Press release, Office of Attorney General Steve Six, Attorney General Six
Announces $67.5 Million Tobacco Payment (Apr. 20, 2009). Copy supplied.

Press release, Office of Attorney General Steve Six, New False Claims Act
Empowers Attorney General to Prosecute Fraud and Waste (Apr. 20, 2009).

Copy supplied.

Tim Unruh, O n Guard . Salma Journal, Apr. 18, 2009. Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Recognizes
Kansas National Guard Members, Observes Training Exercises (Apr. 17, 2009).
Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Recognizes
Progress for Kansas Crime Victims, Presents Service Awards (Apr. 16, 2009).
Copy supplied.

Press release. Office of Attorney General Steve Six, KORA/KOMA Regional
Workshop Update, Apr. 13,2009. Copy supplied.

Press release, Office of the Governor, Governor Sebelius and Attorney General
Six Host 12^ Annual Crime Victims Rights Conference (Apr. 9, 2009). Copy
supplied.

Press release. Office of Attorney General Steve Six, Sexual Assault Awareness
Month (Apr. 9, 2009). Copy supplied.

Tim Carpenter, Kansas Republicans Doubt Sebelius Claim . Topeka Capital-
Journal, Apr. 2, 2009. Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Warns of
Mortgage Modification Scams (Apr. 2, 2009). Copy supplied.

Press conference on animal fights. Mar. 24, 2009. Related press coverage is listed
below:

70

815

Dawn Bormann, Humane Society Takes Aim at Animal Fights . Kansas City
Star, Mar. 25, 2009. Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Six,
The Humane Society of the United States Announce Kansas Animal Fighting
Reward Program (Mar. 24, 2009). Copy supplied.

Attorney General. Humane Society Announce Reward for Reporting Animal
Fighting . LJWorld.com, Mar. 24, 2009. Video and related news story
available at h ttn://www2.1i world.com/news/2009/mar/24/attomev-eeneral-
humane-society-announce-reward-re/ .

Press release, Office of Attorney General Steve Six, Licenses Revoked for
Internet Pill Mill Scheme (Mat. 19, 2009). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General to Host
Open Government Regional Trainings (Mar. i 9, 2009). Copy supplied.

Kan. AG Pleased with Senate Move on Death Penalty . Associated Press, Mar. 1 7,
2009. Copy supplied.

David Klepper, Jury Selection for Tiller Trial Starts Today . Kansas City Star,
Mar. 16,2009. Copy supplied.

Press release, Office of Attorney General Steve Six, Column: Financial Literacy
Important for Kansas Teens (Mar. 16, 2009). Copy supplied.

Jan Biles, A Matter of Trust. Attorney Genera] Trying to Repair Office’s Image .
Topeka Capital-Journal, Mar. 14, 2009. Copy supplied.

Press conference on death penalty, Topeka, Kansas. I spoke about supporting
Kansas’ death penalty law. Mar. 12. 2009. Notes supplied and related press
coverage is listed below:

Tim Carpenter. Death Penalty Repeal on Tan . Topeka Capital-Journal, Mar.
16,2010. Copy supplied.

David Klepper, Kansas Attorney General Opposes Plan to Abolish Death
Penalty . Kansas City Star, Mar, 13, 2009. Copy supplied.

Tim Carpenter, Attorney General: Keep Death Penalty . Topeka Capital-
Journal, Mar. 13,2009. Copy supplied.

Jeannine Koranda, Victims’ Relatives Oppose Bill . Wichita Eagle, Mar. 13,
2009. Copy supplied.

71

816

A G. Vict im s of Carr Brother?; Sneak Out against Ending Death Penalty .
KSN.com, Mar. 1 3, 2009. Copy supplied.

Kan. AG: Reject Bill to End Death Penalty , Associated Press, Mar. 12, 2009.
Copy supplied.

Tim Carpenter, Six Touts Kan. Death Penalty , cjonline.com. Mar. 12, 2009.
Copy supplied.

AG Says Cost No R e ason to Abolish Death Penalty . LJWorld.com, Mar. 12,
2009. Video available at http://www2.liworld.com/news/2009/itiar/12/ag-
savs-cost-no-reason-abolish-death-penaltv/ .

Sara Pratlev. Police Wa rn Studen ts of Spring Break Rapist . CNN.com, Mar. 12,
2009. Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General: Possible
Connection between Lawrence, Manhattan Rapes (Mar. 1 1, 2009). Copy
supplied.

Patrick Lowry, Editorial: Kansas vs. Colorado . Hays Daily News, Mar. 10, 2009.
Copy supplied.

Chris Woodka, State Wins on Final Ark River Court Issue: Justices Reject
Kansas’ Claim for Expert Witness Payments . Pueblo Chieftain, Mai. 10, 2009.
Copy supplied.

John Hanna, C olo. Prevails in Dispute over Lena! Fees in Water Case . Associated
Press, Mar. 9, 2009. Copy supplied.

Attorney Genera! Helps With Shredding Event . LJWorId.com, Mar. 5, 2009.

Video available at http: // www2.liworld.conn/videos/2009/mar/05/23575/ .

Press release, Office of Attorney General Steve Six, AG Six Secures New
Tobacco Settlement Funds (Mar. 5, 2009). Copy supplied.

David Muir, “A Closer Look”: Death an d Taxes . World News Saturday, Feb. 28,
2009. Transcript supplied.

Tim Carpenter, Death Penalty Hearing Today , Topeka Capital-Journal, Feb. 27,
2009. Copy supplied.

Press conference on consumer protection, Topeka, Kansas, Feb. 25, 2009. I spoke
about the work of the attorney general’s office to protect consumers. Notes
supplied.

72

817

Press release, Office of Attorney General Steve Six, $5.6 Million Savings,
Settlements Demonstrate Increased Consumer Enforcement (Feb. 25, 2009).

Copy supplied.

Mediation Rather Than Litigation . KTKA, Feb. 19, 2009. Video available at
http://www.ktka.com/videos/2009/feb/19/23S42/ .

Press release, Office of Attorney General Steve Six, AG Six Unveils New
Consumer Mediation Program, Feb. 19,2009. Copy supplied.

Press release, Office of Attorney General Steve Six, Kansas Death Penalty Statute
Should Stand (Feb. 18, 2009). Copy supplied.

Rhonda Holman, D on’t Rush to Pass N e w DUI l .aws. Wichita Eagle, Feb. 1 7,
2009. Copy supplied.

J ury Recommends Death in Kan . Student’s Slaving . Associated Press, Feb. 17,
2009. Copy supplied.

Excerpts from Our Blot;: Dealh Penalty Law Fair. Six Says . Wichita Eagle, Feb.
16,2009. Copy supplied.

Press release. Office of Attorney General Steve Six, AG Column: Proud of the
Attorney General’s Office Changes and Priorities (Feb. 9, 2009). Copy supplied.

Jeannine Koranda, Will Death Penalty Fall Victim to Recession? . Wichita Eagle,
Feb. 7, 2009. Copy supplied.

Press release, Office of Attorney General Steve Six, Consumer Alert: Six Warns
Kansans of Vishing Scam (Feb. 6, 2009). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General has Record
Year in Medicaid Recoveries (Feb. 3, 2009). Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Shuts
Down Oil Supplier Suspected of Deceptive Acts (Jan. 28, 2009). Copy supplied.

A.G.’s Office to Offer Lessons on Reai-Life Economics . LJWorld.com, Jan. 26,
2009. Video and related news story available at

http://www2.li world-Com/news/2009/ian/26/gs-o[fice-offer-le5sons-rcal-life-
econo mics/ .

Press release. Office of Attorney General Steve Six, Tower Mental Health
Foundation Donates Money for Crisis Intervention Training Program (Jan. 23,
2009). Copy supplied.

73

818

Press release, Office of Attorney General Steve Six, Attorney General Six
Reaches Agreement with Eli Lilly (Jan. 15,2009). Copy supplied.

Press release. Office of Attorney General Steve Six, AG Column: Free Consumer
Education Opportunities for Students (Jan. 15, 2009). Copy supplied.

Press release. Office of Attorney General Steve Six, Kansas, Other States Settle
with Santa Fc Natural Tobacco Company (Jan. 1 2, 2009). Copy supplied.

Interview on Channel 27 (KSNT), Jan. 12, 2009. Press coverage, with excerpts
supplied.

Press release. Office of Attorney General Steve Six, AG Six Offers Law
Enforcement Training on New Stalking Law (Jan. 9, 2009). Copy supplied.

Est ates of Deceased Being Targeted . Morning Call, Jan. 6, 2009. Copy supplied.

Press release. Office of Attorney General Steve Six, AG to Host I s ' Annual
Student Consumer Workshops during National Consumer Protection Week (Jan.
5, 2009). Copy supplied.

Press release. Office of Attorney General Steve Six, Pharmaceutical Company
Cephalon to Reimburse Kansas Medicaid Program (Dec. 30, 2008). Copy
supplied.

Press release. Office of Attorney General Steve Six, Attorney General, AMBER
Taskforce Release New Public Service Announcements (Dec. 29, 2008). Copy
supplied.

Press release, Office of Attorney General Steve Six, Attorney General Six
Reaches Settlement with Maker of Airhome (Dec. 16, 2008). Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney Genera! Six
Reaches Settlement with Toy Maker Mattel (Dec. 1 5, 2008). Copy supplied.

Press release, Office of Attorney General Steve Six, AG Six: Do Some Research
Before You Donate (Dec. 15, 2008). Copy supplied.

Press release, Office of Attorney General Steve Six, 12 Consumer Tips for the
Holiday Season (Dee. 1 1 , 2008). Copy supplied.

Dave Helling and Mike McGraw, Potential Conflicts Abound for Attorneys
General . Kansas City Star, Dec. 9, 2008. Copy supplied.

74

819

Joe Lambe and Laura Bauer, Despite Harsh Words. Kline Gets to Keep Abortion
Records , Wichita Eagle, Dec. 6, 2008. Copy supplied.

Tim Carpenter, Kline Abortion Prosecution Faulted . Topeka Capital-Journal, Dec.
6, 2008. Copy supplied.

John Hanna, Kan. Court Knocks Ex-AG in Abortion Case . Associated Press, Dec.
6, 2008. Copy supplied.

Chris Green, Advice Helps Six Before High Court . Ottawa Herald, Dec. 5, 2008.
Copy supplied.

Ron Sylvester, State Works to Halt Elder Abuse . Wichita Eagle, Dec. 4, 2008.
Copy supplied.

Kansas AG to Argue B efore Supreme Court . Associated Press, Nov. 28, 2008.
Copy supplied.

Tim Carpenter, A .G. Six to Argue Before Justices . Topeka Capital-Journal, Nov.
27, 2008. Copy supplied.

Press release. Office of Attorney General Steve Six, Consumer Alert: Tips when
Purchasing Gift Cards this Holiday Season (Nov. 26, 2008). Copy supplied.

Press release, Office of Attorney General Steve Six, Consumer Alert: Six Urges
Consumers to Shop Smart this Season (Nov. 24, 2008). Copy supplied.

Press conference on Domestic Violence Shelter Project, Topeka, Kansas, Nov. 20,
2008. T spoke about efforts to prevent domestic violence. Notes supplied.

Press release, Office of Attorney General Steve Six, AG Six Announces Domestic
Violence Shelter Improvement Project, Partnership with Wal-Mart (Nov. 20,
2008). Copy supplied.

TV interview, Kan s as AG’s Message to Parents: Rea d to Your Children .
LJWorld.com, Nov. 19, 2008. Video available at

hl1n://www2.1i world, com/news/2008/nov/l 9/kansas-ags-message-parents-read-
vour-children/ .

Press release, Office of Attorney General Steve Six, Six Urges Parents to Check
Ratings When Buying Video Games as Gifts (Nov. 1 8, 2008). Copy supplied.

Press release. Office of Attorney General Steve Six, Six Sues More Drug
Companies for Overcharging Kansas Medicaid (Nov. 1 7, 2008). Copy supplied.

75

820

Press release. Office of Attorney General Steve Six, Attorney General Six Sues
Utah Company for Misusing Kansans’ Personal Information (Nov. 17, 2008).
Copy supplied.

Brief: Pittsburg Man Found Guilty of 2006 Murders . Joplin Globe, Nov. 15, 2008.
Copy supplied.

Roxana Hegeman, Hearing in Kan. Abortion Case Targets Prosecutors .

Associated Press, Nov. 1 5, 2008. Copy supplied.

Press release. Office of Attorney General Steve Six, Kansas, 1 1 Other States
Reach Agreement with Countrywide to Help Nearly 400,000 Homeowners Facing
Foreclosure (Nov. 13,2008). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Sues
Wyandotte County Business for Producing Illegal Drivers Licenses (Nov. 7,
2008). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Six
Announces Agreement with Craigslist to Crack Down on Erotic Services Ad
Content (Nov. 6, 2008). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Six Sues to
Stop Verizon’s Acquisition of Alltel Corporation (Oct. 31, 2008). Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Reminds
Employers to Give Employees Time to Vote (Oct 29, 2008). Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Charges
Crawford County Man with Mistreating a Dependent Adult (Oct. 27, 2008).

Copy supplied.

Press release, Office of Attorney General Steve Six, Six Sues Drug Companies for
Overcharging Kansas Medicaid (Oct. 24, 2008). Copy supplied.

Press release, Office of Attorney General Steve Six, Gregory Moore’s Conviction
Upheld (Oct. 24, 2008). Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Six Files
Judgment against Pfizer Inc. (Oct. 22, 2008). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Six Sues to
Block Merger of Two of the Top Five Beef Processors in the U.S. (Oct. 20, 2008).
Copy supplied.

76

821

Press release. Office of Attorney General Steve Six, Attorney General Steve Six
Recognizes National Teen Driver Safety Week (Oct, 20, 2008). Copy supplied.

Roxana Hegcman, Kan. AG Says Case against Tiller Should Stand . Associated
Press, Oct. 1 7, 2008. Copy supplied.

Press conference on Stop Child Pom, Topeka, Kansas. I spoke about efforts to
combat Internet child pornography, Oct. 15, 2008. Notes supplied and related
press coverage is listed below:

Press release, Rep. Nancy E. Bciyda's Office, Rep. Boyd and A.G. Steve Six
Announce New Law to Protect Kansas Kids from Predators (Oct. 15, 2008).
Copy supplied.

Press release. Office of Attorney Genera! Steve Six, Attorney General Announces
Agreement with Shell Oil to Curb Tobacco Sales to Minors (Oct. 14, 2008).

Copy supplied.

Press release. Office of Attorney General Steve Six, Column: Still Working to
Stop Domestic Violence (Oct. 12, 2008). Copy supplied.

Press release. Office of Attorney General Steve Six, Kansas, 33 States Reach
Landmark $62 Million Settlement with Eli Lilly (Oct. 8, 2008). Copy supplied.

Press release, Office of Attorney General Steve Six, Consumer Alert: Deceased
Kansans’ Identities Used in Fraud Scheme (Oct. 3, 2008). Copy supplied.

Press release. Office of Attorney General Steve Six, U.S. Supreme Court to Hear
Kansas Murder Case (Oct. 1 , 2008). Copy supplied.

Chardae Davis, AG Seeks Wavs to Stop Repeat Offenders . LJWorld.com, Sept.
25, 2008. Video and related news stoiy available at

htto://www2.1iworId.com/news/2008/seo/25/ag seeks wavs stop repeat offende
rs /.

Press release, Office of Attorney General Steve Six, Attorney General Unveils
New Identity Theft Repair Kit (Sept. 25, 2008). Copy supplied.

Staff Editorial, The Case for Vetting: Better Researching Former AG Might Have
Spared State Expensive Mess . Hutchinson News, Sept. 22, 2008. Copy supplied.

Press release. Office of Attorney General Steve Six, Consumer Alert: Be Wary
When Giving to Charities after Natural Disasters (Sept. 19, 2008). Copy
supplied.

77

822

Press release. Office of Attorney General Steve Six, Pabst Conviction Upheld by
Kansas Supreme Court (Sept. 19, 2008). Copy supplied.

Rhonda Ilolman, What More Can Be Done to Fight Crime? . Wichita Eagle, Sept.

18.2008. Copy supplied.

Kevin Flaherty, Violent Crime Rate Drops Locally . Morning Sun, Sept. 1 8, 2008.
Copy supplied.

Scott Rothschild, In-State Tuition Law Rejected in Calif.: Attorney Says Kansas
Should Repeal Benefit for Immigrant Students . Lawrence Journal-World, Sept.

17.2008. Copy supplied.

David Klepper, Six Says Prosecution of Tiller Goes On . Kansas City Star, Sept.
17, 2008. Copy supplied.

Barbara Hollingsworth, 'Gangs. Drugs. Guns’ Focus of Topeka Police . Topeka
Capital-Journal, Sept. 17,2008. Copy supplied.

John Hanna, FBI: Kansas Violent Crime Up 7 Percent . Associated Press, Sept. 16,
2008. Copy supplied.

John Hanna, Kan. AG: Allegations in Abortion Case disturbing’ . Associated
Press, Sept. 16, 2008. Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General, AMBER
Alert Taskforce Begins New Regional Training Program (Sept. 1 1 , 7008). Copy
supplied.

Press release. Office of Attorney General Steve Six, Attorney General’s Office to
Assist Consumers at the State Fair (Sept. 3, 2008). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Charges
Crawford County Woman with Mistreating a Dependent Adult (Sept. 3, 2008).
Copy supplied.

Report: Pre-K Programs Can Cut Crime . LJWorld.com, Aug. 26, 2008. Video
and related news story available at

http://www2.liworld.com/news/2008/auB/26/report prek programs can cut crim

e/.

Press release. Office of Attorney General Steve Six, Attorney General Six Files
Additional Charges in Internet Pharmacy Scheme (Aug. 21 , 2008). Copy
supplied.

78

823

Press release. Office of Attorney General Steve Six, Attorney General Six Files
Charges in Internet Pharmacy Scheme (Aug. 19, 2008). Copy supplied.

A ttorney General Warns Students about Financial Risks . LJWorld.com, Aug. 18,
2008. Video and related news story available at

http://www2.liworld.com/news/2008/aug7I8/ag warns students ab ou t financial
risks/ .

Press release. Office of Attorney General Steve Six, Man Charged in Osborne
County Murder (Aug. 18, 2008). Copy supplied.

Press release, Office of Attorney General Steve Six, Kansas Attorney Genera!
Sues Chad Franklin Suzuki for Deceptive Business Practices (Aug. 1 8, 2008).
Copy supplied.

Press release, Office of Attorney General Steve Six, Achieving Justice for All
Crime Victims (Aug. 5, 2008). Copy supplied.

Paul Doocey, All Systems Go: Court Okays Casino Expansion in Ka nsas.
Developers Compete for Licenses . Casino Journal, Aug. 1, 2008. Copy supplied.

KBA Honors 18 Individuals and Pro Se Task Force for Their Service to the Legal
Profession and Community . Journal of the Kansas Bar Association, July/Aug.
2008. Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Appoints
Kerbs to Kansas Governmental Ethics Commission (July 30, 2008). Copy
supplied.

Press release, Office of Attorney General Steve Six, Attorney General Announces
$2.25 Million in Grants Awards (July 28. 2008). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Announces
Victory in Tobacco Suit (July 23, 2008). Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Shuts
Down Travel Company Suspected of Deceptive Acts (July 23, 2008). Copy
supplied.

Press release, Office of Attorney General Steve Six, Attorney General Creates
New Tobacco Enforcement Unit (July 22, 2008). Copy supplied.

Press release. Office of Attorney General Steve Six, Column: NetSafeKansas Can
Make a Difference in Online Safety (July 14, 2008). Copy supplied.

79

824

Press conference on NetSafeKansas.com, July 10, 2008. Related coverage is
listed below:

Robert Cronkleton, Kansas Attorney General Visits KCKto Unveil New
Internet Safety Site . Kansas City Star, July 12, 2008. Copy supplied.

Press release. Office of Attorney General Steve Six, Kansas Attorney General
Unveils NetSafeKansas.com (July 1 0, 2008). Copy supplied.

John Hanna, Kan. Panel Rules Against Ed Board Candidate . Associated Press,
July 8, 2008. Copy supplied.

Press conference on fuel prices, Topeka, Kansas, June 30, 2008. I spoke about
monitoring and accuracy of fuel pumps. Notes supplied.

Press release. Office of Attorney General Steve Six, Attorney General, Secretary
of Ag Issue Stem Warning to Fuel Station Operators (June 30, 2008). Copy
supplied.

Press release, Office of Attorney Genera! Steve Six, Attorney General’s Gaming
Statement (June 27, 2008). Copy supplied.

John Hanna, Kan. Court Says Juveniles Have Right to Jury Trial . Associated
Press, June 20, 2008. Copy supplied.

Press release. Office of Attorney General Steve Six, Consumer Alert : Preventing
Scams in Disaster Areas (June 16, 2008). Copy supplied.

Press release, Office of Attorney General Steve Six, Storms Bring Out the Best
and Worst (June 16, 2008). Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Six and the
Kansas State Child Death Review Board Promote Summer Water Safety (June 13,
2008). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Supports
We Don’t Serve Teens Summer Campaign (June 1 1 , 2008). Copy supplied.

Tim Carpenter, Six Noncommittal on 2010 . Topeka Capital-Journal, June 6, 2008.
Copy supplied.

John Hanna, AG Drops Hints That He’ll Seek Full Term in 2010 . Associated
Press, June 5, 2008. Copy supplied.

80

825

Press release. Office of Attorney General Steve Six, Attorney General Six
Recovers Over $1 85,000 for Kansas from Walgreens (June 4, 2008). Copy
supplied.

Paul Wenske, Con Artists Promoting Deed Scam . Kansas City Star, May 31,
2008. Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney Genera! Six Files
Judgment against Merck Pharmaceuticals (May 20, 2008). Copy supplied.

Press release. Office of Anomey General Steve Six, Kansas Seniors Need Our
Protection (May 19, 2008). Copy supplied.

Press release. Office of Attorney General Steve Six, Six Targets Elder, Financial
Abuse (May 14, 2008). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Six
Applauds New Safety Agreement with Facebook (May 8, 2008). Copy supplied.

John Hanna, Kansas Seeks $72M from Nebraska Over River . Associated Press,
Apr. 22, 2008. Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Six
Announces $66 Million Tobacco Payment (Apr. 18, 2008). Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Six Honors
Crime Victims, Presents Awards (Apr. 1 7, 2008). Copy supplied.

Tim Carpenter, Woman Relates Horror of Rape . Topeka Capital-Journal, Apr. 17,
2008. Copy supplied.

Michael Pearce, No Six Shooter . Wichita Eagle, Apr. 13, 2008. Copy supplied.

Press release, Office of the Governor, Gov. Sebelius, Attorney General Six Host
Annual Crime Victims’ Rights Conference, Apr. 1 1, 2008. Copy supplied.

George Dienenhrock. Kittel Sworn In . Lamence Journal-World, Apr. 10, 2008.
Copy supplied.

Greg Grisolano, Attorney General Kicks Off Domestic-Viole n ce Aw ar eness
Month in Pittsburg. The Joplin Globe, Apr. 5, 2008. Copy supplied.

Press release. Office of Attorney General Steve Six, Committed to Defending
Funeral Picketing Law (Apr. 4, 2008). Copy supplied.

81

826

Finn Bullers, Kansas Attorney General Will Have No Role in Morrison
Investigation . Kansas City Star, Apr. 3, 2008. Copy supplied.

Press release, Office of the Governor, Attorney General Six to Host Gov.
Sebelius’ One-Shot Turkey Hunt, Apr. 1, 2008. Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General to Spend
April Honoring Kansas Crime Victims, Apr. 1, 2008. Copy supplied.

Press release, Office of Attorney General Steve Six, Open Government a
Necessity (Mar. 17,2008). Copy supplied.

Rick Aim, Kansas Attorney General Won’t Issue Opinion on Casino Appli c ants .
Kansas City Star, Mar. 15, 2008. Copy supplied.

Rhonda Holman, Attorney General Q uie tly Doing Job . Wichita Eagle, Mar. 13,
2008. Copy supplied.

Carl Manning, Kansas High Court: Part of Funeral Picketing Law
Unconstitutional . Associated Press, Mar. 1 1 , 2008. Copy supplied.

Press release, Office of Attorney General Steve Six, Wichita Woman Indicted For
Defrauding Medicaid of $3.76 Million (Mar. 5, 2008). Copy supplied.

Press release. Office of Attorney General Steve Six, Attorney General Six
Announces Songs of Kansas Scholarship (Mar. 4, 2008). Copy supplied.

Press release. Office of Attorney General Steve Six, AG Six Recognizes National
Consumer Protection Week, Encourages Financial Literacy (Mar. 3, 2008). Copy
supplied.

Press release. Office of Attorney General Steve Six, Attorney General Six Urges
Congress to Restore Grant Funds for Law Enforcement, Mar. 3, 2008. Copy
supplied.

Press release, Office of Attorney General Steve Six, Three Charged In Scheme to
Defraud Medicaid Program (Feb. 29, 2008). Copy supplied.

Press release. Office of Attorney General Steve Six, Lawmakers Should Make
Cyber Crime a Priority (Feb. 27, 2008). Copy supplied.

Press conference on Cyber-Crime and Internet Training with Students, Topeka,
Kansas, I spoke to the group about Internet safety, Feb. 25, 2008. Notes supplied
and press coverage is listed below:

82

827

John Hanna, House. Senate Begin Talks Over Bill on Coal-Fired Plants .
Associated Press, Feb. 25, 2008. Copy supplied.

David Klepper, Cyber Crime is a Priority for New Attorney General . Wichita
Eagle, Feb. 25, 2008. Copy supplied.

Press release, Office of Attorney General Steve Six, Attorney General Six
Urges Legislature to Crack Down on Cyber Crime (Feb. 25, 2008). Copy
supplied.

John Hanna, New AG Assumes Lower Profile, Avoids Political Side of Job .
Associated Press, Feb. 14, 2008. Copy supplied.

Press release, Office of Attorney General Steve Six, Aventis Pharmaceuticals
Held Accountable for Defrauding Kansas Medicaid Program (Feb. 1 3, 2008).
Copy supplied.

A Brief Biography of Stephen N. Six. Kansas* New Attorney General . Associated
Press, Feb. 13,2008. Copy supplied.

David Klepper, Kansas Attorney General Hopes to Restore Stability, Continuity .
Kansas City Star, Feb. 11, 2008. Copy supplied.

James Carlson, A.G Offers a Look Ahead . Topeka Capital-Journal, Feb. 10,

2008. Copy supplied.

Press release, Office of Attorney General Steve Six, Kansas Seeks Quick
Resolution to Water Dispute (Feb. 8, 2008). Copy supplied.

John Hanna, AP Newsbrcak: AG’s Office Subpoenaed bv Tiller Grand Jury' .
Associated Press, Feb. 7, 2008. Copy supplied.

John Hanna, Kansas AG Expects Court Battle with Nebraska over Republican .
Associated Press, Feb. 7, 2008. Copy supplied.

Press release. Office of Attorney General Steve Six, Kansas to Receive Nearly $5
Million in Merck Settlement (Feb. 7, 2008). Copy supplied.

WE Blog: F.xcernts from Our Web Log . Wichita Eagle, Feb. 7, 2008. Copy
supplied.

Scott Rothschild, Six Getting Settled In New Role . Lawrence Journal-World, Feb.
6, 2008. Copy supplied.

Press release, Office of Attorney General Steve Six, Gaming Statement from
Attorney General Stephen Six (Feb. 1, 2008). Copy supplied.

83

828

Press release, Office of Attorney General Steve Six, Six Sworn In as Kansas
Attorney General (Jan. 3 1 , 2008). Copy supplied.

Rhonda Holman, Raise Pay of A.G.. Officials . Wichita Eagle, Jan. 26, 2008.

Copy supplied.

Press conference on Attorney General Announcement, Topeka, Kansas, Jan. 18,
2008. Related press coverage is listed below:

Tim Carpenter, Sebelius Counts on Six . Topeka Capital-Journal, Jan. 1 9,

2008. Copy supplied.

Quotes on Stephen Six Being Named Attorney General . Associated Press, Jan.

19.2008. Copy supplied.

James Carlson, Six Characterized as ‘a Regular Guv' . Topeka Capital-Journal,
Jan. 1 9, 2008. Copy supplied.

John Hanna, Anti- Abortion Groups Split Over S ix Appointment as AG ,
Associated Press, Jan. 19,2008. Copy supplied.

Scott Rothschild, Six Named New Attorney General: Local Judge to Replaee
Sc andal-Tainted Morrison. Lawrence Journal- World, lan. 1 8, 2008. Copy
supplied.

David Klcpper, New Attorney General Vows to Serve with Integrity . Kansas
City Star, Jan. 18,2008. Copy supplied.

Jack Weinstein, Governor Appoints New Attorney General . Times Limited,
Jan. 18, 2008. Copy supplied.

Judge Six Named Kansas Attorney General. Lawrence Journal-World, Jan.

18.2008. Video available at
http: // www2.liworld.eom/videos/2008/ian/l 8/16876/ .

John Hanna, Sebelius Names Douglas County Judge Six Attorney General .
Associated Press, Jan. 18,2008. Copy supplied.

Press release, Offiee of Attorney General Steve Six, Sebelius Names Judge
Stephen N. Six Kansas Attorney General (Jan. 1 8, 2008). I have been unable to
obtain a copy.

John Hanna. On Crowded Lists of Potential AGs. Biggs Ranks High . Associated
Press, Dec. 18, 2007. Copy supplied.

84

829

Dan Margolies, Cra sh Victim’s Family Wins Case . Kansas City Star, May 8,
2003, Copy supplied.

Tim Potter, Wesley Purkev Had a History of Committing Crimes on Parole hut
the State Paroled Him Agai n and Then the System Broke Down . Wichita Eagle,
June 1 1, 2000. Copy supplied.

Tim Potter, Slain Tea cher’s Son Asks: Why? . Wichita Eagle, Apr. 13, 2000.

Copy supplied.

Dan Margolies, K C Law Firm Uses CD-ROM Technology . Kansas City Star,

Feb. 1,2000. Copy supplied.

Tim Carpenter, Some Grads Sour on K U Experiences . Lawrence Journal-World,
May 14, 1993. Copy supplied.

Tim Carpenter, KU Students Assess Quality of Education . Lawrence Journal-
World, May 14, 1993. Copy supplied.

13. Judicial Office : State (chronologically) any judicial offices you have held, including
positions as an administrative law judge, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.

I was appointed a district court judge in Douglas County, Kansas in January 2005. I had
general jurisdiction of criminal and civil cases.

a. Approximately how many cases have you presided over that have gone to verdict
or judgment?

As a district court judge, 1 made rulings in several hundred cases which were
resolved in various ways, by dismissal, summary judgment, judgment or trial. I
would estimate that fifty to sixty of the criminal cases proceeded to jury trial and
ten to fifteen of the civil cases resulted in a jury trial. 1 also had approximately 10
to 15 criminal bench trials and twenty-five to thirty civil bench trials.

i. Of these, approximately what percent were:

jury trials:

60%

bench trials:

40%

civil proceedings:

40%

criminal proceedings:

60%

b. Provide citations for all opinions you have written, including concurrences and
dissents.

85

830

In addition to the Memorandum Decisions listed below, I wrote short orders in
cases on scheduling issues, transferring inmates, granting continuances, extending
deadlines and other matters that are not listed below. These orders are not
available, other than by reviewing each case I handled and doing a search for this
type of order.

State v. Smith, Case No. 2007 DR 303, Memorandum Decision (Dec. 28, 2007)
(denying defendant’s motion to suppress)

In the matter minor child , Case No. 2007 JV 129 Memorandum Decision (Dee.

10, 2007) (denying appeal adjudicating defendant as a juvenile offender-juvenile
records confidential)

Hamilton v. Kansas Dep 't of Revenue , Case No. 2007 CV 1 80, Memorandum
Decision (Dec. 3, 2007) (denying defendant’s appeal of his driver’s license
suspension)

Miller v. Johnson, Case No. 2004 CV 704, Memorandum Decision (Nov. 19,
2007) (denying defendant’s motion for a new trial)

Miller v. Johnson , Case No. 2004 CV 704, Memorandum Decision (Nov. 19,
2007) (denying plaintiffs challenge to the state tort limits)

Weingart v. Guimdon, Case No. 2005 CV 404, Memorandum Decision (Nov. 2,
2007) (granting defendant summary judgment on some claims)

Weingart v. Guindon, Case No. 2005 CV 404, Memorandum Decision (Nov. 1,
2007) (granting defendant’s motion to strike expert)

In the Matter of minor child. Case No. 2005 JV 327, Memorandum Decision (Oct.

11, 2007) (denying juvenile’s request for new trial)

Miller v. Johnson, Case No. 2004 CV 704, Memorandum Decision (Sept. 17,
2007) (entering jury verdict and reducing verdict under state tort limits)

Hampton Court LLC v. Vitale, Case No. 2007 LM 1820, Memorandum Decision
(Aug. 30, 2007) (interpreting Crime Free Premises provision of residential lease)

City of Eudora v. Kem, Case No. 2006 CV 630, Memorandum Decision (June 1 ,
2007) (denying appeal from zoning board)

Brown v. Kansas, Case No. 2007 CV 194, Memorandum Decision (May 10,

2007) (granting state’s motion to dissolve writ of habeas corpus)

Vogt v. Kansas Dep 'l of Revenue, Case No. 2006 CV 275, Memorandum Decision
(Mar. 15, 2007) (denying defendant’s appeal of suspension of his driver’s license)

86

831

In the Matter of minor child , Case No. 2004 JV 3 1 9, Memorandum Decision
(Mar. 1, 2007) (denying juvenile's appeal of the revocation of his diversion
agreement)

Dow v. Meadowlark Dev. Grp., Case No. 2006 CV 200, Memorandum Decision
(Sept. 7, 2006) (granting defendant's motion to dismiss for defect in pre-filing
notice)

State v. Richardson , Case No. 2006 CR 768, Memorandum Decision (Sept. 1 ,
2006) (denying defendant’s constitutional challenge to criminal statute)

In the Matter of the Marriage of Bradburn v. Bradburn, Case No. 2003 DM 399,
Memorandum Decision (June 5, 2006) (post divorce decree enforcement)

In the Matter of minor child , Case No. 2005 JV 284/295, Memorandum Decision
(Mar. 29, 2006) (denying defendant’s request to redact pre-scntence report)

State v. Vera, Case No. 2005 CR 948, Memorandum Decision (Mar. 29, 2006)
(denying defendant's suppression motion)

State v. Mejia , Case No. 2005 CR 949, Memorandum Decision (Feb. 15, 2006)
(denying defendant’s suppression motions)

Hunter v. The Honorable Jack A. Murphy , Case No. 2005 CV 671 , Memorandum
Decision (Jan. 24, 2006) (denying defendant’s KSA 60-1507 motion for post
conviction relief and for ineffective assistance of counsel)

In the Matter of the Marriage of Brooks v. Brooks, Case No. 1999 DM 647,
Memorandum Decision (Jan. 17, 2006) (ruling on parenting plan)

Kershenbaum v. Fasbinder, Case No. 2004 CV 294, Memorandum Decision (Jan.
6, 2006) (interpreting trust provision)

Maceli v. Colllier, Case No. 2005 CV 147, Memorandum Decision (Dec. 30,
2005) (petition action for real estate)

In the Matter of Eric Callow, Case No. 2005 CV 339, Memorandum Decision
(Dec. 30, 2005) (denying defendant’s appeal of his driver’s license suspension)

In the Matter of minor child. Case No. 2004 JV 327, Memorandum Decision
(Dec. 29, 2005) (denying juvenile’s appeal of adjudication as offender)

Schreiber v. Keen Line Masonry, Case No. 2005 CV 016, Memorandum Decision
(Dec. 21, 2005) (granting defendant’s motion for summary judgment)

87

832

Fancher Enters., LLC v. Gentle Dentistry, P.A., Case No. 2004 CV 575,
Memorandum Decision (Dec. 16, 2005) (denying plaintiffs motion to dismiss
defendant's counterclaims)

In the Matter of Bradburn v. Bradburn , Case No. 2003 DM 399, Order Denying
Motion For Reconsideration (Dec. 16, 2005) (post divorce decree enforcement)

Powell v. Bd. of Cnty. Comm 'rs. Case No. 2004 CV 573, Memorandum Decision
(Dec. 15, 2005) (denying defendant’s motion for summary judgment)

Schreiber v. Keen Line Masonry , Case No. 2005 CV 016, Memorandum Decision
(Dec. 9, 2005) (granting in part defendant’s motion for summary judgment and
denying in part)

State v. Morris , Case No. 2005 CR 1 124, Memorandum Decision (Dec. 1, 2005)
(ordering restitution)

Stale v. Spicher, Case No. 2005 CR 1 1 25, Memorandum Decision (Dec. 1, 2005)
(ordering restitution)

State v. Asher, Case No. 2005 CR 562, Memorandum Decision (Nov. 21, 2005)
(granting defendant’s motion to suppress)

In the Matter of the Parentage of minor child, Case No. 2004 DM 1038,
Memorandum Decision (Nov. 18, 2005) (denying motion to reconsider custody
order)

Deutsche Bank Nat 7 Trust Co. v. Young, Case No. 2005 CV 082, Memorandum
Decision (Nov. 16, 2005) (establishing property value after foreclosure and sale)

West Meadows Cond. Assoc . v. Davis , Case No. 2004 CV 206, Memorandum
Decision (Nov. 16, 2005) (ordering attorney’s fees and costs)

In the Matter of the Parentage of minor child. Case No. 2004 DM 1038,
Memorandum Decision (Nov. 7, 2005) (establishing parenting plan)

Fancher Enter. LLC v. Gentle Dentistry, P.A., Case No. 2004 CV 575,
Memorandum Decision (Nov. 7, 2005) (denying defendant’s motion for summary
judgment)

Root v. The Renew Group, Inc. , Case No. 2005 LM 426, Memorandum Decision
(Nov. 3, 2005) (denying defendant’s motion for summary judgment)

City of Lawrence v. Youngquist, Case No. 2002 CV 635, Memorandum Decision
(Oct. 24, 2005) (ordering punitive damages and attorney’s fees)

88

833

Lawrence Athletic Cluh v. Cusick, Case No. 2005 LM 032, Memorandum
Decision (Oct. II, 2005) (denying plaintiffs motion to re-instate its dismissed
case)

State v. Payne , Case No. 2005 CR 1216, Memorandum Decision (Oct. 4, 2005)
(granting defendant’s motion to suppress)

Wi mg v. Kong, Case No. 2005 CV 389, Memorandum Decision (Sept. 28, 2005)
(denying plaintiff s motion to re-instate his case)

Checkrite v. Newman, Case No. 2005 LM 1030, Memorandum Decision (Sept.
23, 2005) (denying plaintiffs motion to re-instate its case)

Blomgren v. Kansas Dep 7 of Revenue , Case No. 2005 CV 229, Amended
Memorandum Decision and Order for Stay (Sept. 8, 2005) (adding provision to
allow parties to immediately appeal)

Mason v. Goldman , Case No. 2004 CV 719, Memorandum Decision (Sept. 2,
2005) (ordering attorney’s fees)

Blomgren v. Kansas Dep 7 of Revenue , Case No. 2005 CV 229, Memorandum
Decision (Aug. 26, 2005) (exhaustion of administrative remedies)

Rothwell v. Alkoudsi, 2004 LM 974, Memorandum Decision (Aug. 26, 2005)
(establishing quantum merit claim)

Gramlich v. Kansas Dep 7 of Revenue, Case No. 2004 CV 40, Memorandum
Decision (Aug. 17, 2005) (denying defendant’s appeal of his driver’s license
suspension)

Mason v. Goldman, Case No. 2004 CV 719, Memorandum Decision (Aug. 1 8,
2005) (Denying defendant’s motion for reconsideration)

Sillan v. Univ. of Kansas , 2004 CV 492, Memorandum Decision (July 2 1 , 2005)
(denying plaintiffs appeal of residency determination)

Rogler v. Kansas Dep 7 of Revenue, Case No. 2005 CV 053, Memorandum
Decision (July 21, 2005)(denying defendant’s appeal of his driver’s license
suspension)

Guindon v. Culligan , Case No. 2004 CV 714, Memorandum Decision July 20,
2005) (denying plaintiffs motion to dismiss claims and granting defendant's
motion to file amended petition)

West Meadows v. Davis, Case No. 2004 CV 206, Memorandum Decision (July 6,
2005) (interpreting provision in condominium association bylaws)

89

834

Miescher v. Carson , Case No. 2005 DM 384, Memorandum Decision (June 23,
2005) (rejecting defendant’s mental illness defense to a restraining order)

West Meadows v. Davis , Case No. 2004 CV 206, Memorandum Decision (June 9,
2005) (interpreting provision in condominium association bylaws)

West Meadows v. Davis, Case No. 2004 CV 206, Memorandum Decision (June 9,
2005) (canceling trial for defendant’s failure to respond)

City of Lawrence v. Youngquist , Case No. 2002 CV 635, Memorandum Decision
(Apr. 28, 2005) (denying request to bifurcate trial)

West Meadows v. Davis , Case No. 2004 CV 206, Memorandum Decision (Apr.

12, 2005) (granting plaintiffs motion for summary judgment)

Guindon v. Culligan , Case No. 2004 CV 714, Memorandum Decision (Mar. 14,
2005) (granting in part and denying in part defendant’s motion to dismiss claims)

City of Lawrence v. Youngquist, Case No. 2002 CV 635, Memorandum Decision
(Feb. 28, 2005) (ruling on parties’ motion in limine)

c. For each of the 10 most significant cases over which you presided, provide: (1) a
capsule summary of the nature the case; (2) the outcome of the case; (3) the name
and contact information for counsel who had a significant role in the trial of the
case; and (3) the citation of the case (if reported) or the docket number and a copy
of the opinion or judgment (if not reported).

1. City of Lawrence ex re!. Morales v. Youngquist, 2002CV635. Opinion

dated Oet. 24, 2005 supplied.

Plaintiffs sued defendants for housing discrimination. Plaintiffs, an Hispanic
woman and an African-American man, who otherwise were qualified to rent,
were denied an opportunity to rent at defendants' apartments for the stated reason
they were unmarried. Evidence at trial showed that unmarried white couples
lived at the apartments. Plaintiff brought claims for housing discrimination. The
jury returned a verdict in favor of plaintiffs.

Counsel:

Plaintiffs, Bruce Plenk and Max Kautsch, 16 East 13th Street, Lawrence, Kansas,
66044, 785-840-0077.

Defendants, Chris Miller, 645 Country Club Terrace, Lawrence, Kansas 66049,
785-841-2110.

90

835

2. Slate v. Richardson, 06CR768. Opinion dated Sept. 1, 2006 supplied.

Defendant was charged with the crime of intentionally exposing five women to a
life-threatening communicable disease. It was the first prosecution in Kansas
under this statute. The jury found the defendant guilty.

Counsel:

State: Amy McGowan, Assistant District Attorney, 1 1 1 East 1 1th Street,
Lawrence, Kansas 66044, 785-832-53 1 8.

Defendant: Thomas Johnson, Perefish, Immel, Heeb & Hird, L.L.P., 842
Louisiana Street, P.O. Box 485, Lawrence, Kansas, 785-843-0450.

3. Miller v. Johnson, 2004CV704. Opinion dated Nov. 1 9, 2007 supplied.

Plaintiff went to defendant for removal of a diseased right ovary. Defendant
removed her healthy left ovary. After discovering the error, plaintiff’s remaining
diseased ovary was removed, leaving plaintiff without ovaries. The jury returned
a verdict in excess of the state tort limits and plaintiff filed a constitutional
challenge to the limits. I denied plaintiffs challenge and the appeal is pending
before the Kansas Supreme Court.

Counsel:

Plaintiff: William Skepnek, Skepnek Law Firm, P.O. Box 442226, Lawrence,
Kansas 66044, 785-856-3 1 00.

Defendant: Bruce Keplinger, Norris & Keplinger, LLC, 6800 College Boulevard,
Suite 360, Overland Park, Kansas 6621 1, 913-323-3185.

4. Guindon v. Culligan , 2004CV714. Opinion dated July 20, 2005 supplied.

Plaintiff was a psychiatrist who developed an Internet relationship with the
defendant. Plaintiff also began treating defendant and established a physician-
patient relationship. After the romantic relationship ended, defendant posted
negative information about plaintiff on the Internet. These Internet activities led
the plaintiff to file several common-law tort claims against defendant. Defendant
counter-claimed with professional malpractice claims. The ease raised interesting
issues relating to acts done over the Internet and whether that established
jurisdiction. The case continued after I left the bench.

Counsel:

Plaintiff: Tom Theis, Foulston Siefkin LLP, 5344 South Kansas Avenue, Topeka,
Kansas 66603, 785-233-3600.

Defendant: Trey Meyer, 843 New Hampshire Street, P.O. Box 4512, Lawrence,
Kansas 66044, 785-3 1 7-4685 .

91

836

5. State v. Kane, 2006CR2242.

Defendant was a teaching aide assigned to mentor a troubled student. She entered
into a sexual relationship with the young student that continued after defendant
became a teacher. After conviction, 1 rejected defendant’s request for a
dispositional departure from the Kansas sentencing guidelines and sentenced
defendant to prison. The Kansas Supreme Court upheld my ruling. 203 P. 3d 734
(Kan. 2009).

Counsel:

State: Amy McGowan, Assistant District Attorney, 1 1 1 East 1 1th Street,
Lawrence, Kansas 66044, 785-832-5318.

Defendant: James Rumsey, 840 Connecticut Street, Suite B, Lawrence, Kansas
66044, 785-856-3264.

6. Blomgren v. Kansas Dep 7 of Revenue, 2005CV229. Opinion dated Aug.
26, 2005 supplied.

The Kansas Department of Revenue sought to revoke the defendants’ liquor
licenses for two liquor stores. Defendants challenged the state’s administrative
procedures and findings and the state challenged whether defendants had properly
exhausted their administrative remedies. I determined the plaintiffs had properly
exhausted their administrative remedies and denied defendant’s motion to
dismiss. The parties sought an interlocutory appeal of this decision. The Kansas
Court of Appeals affirmed my decision. 191 P.3d 320 (Kan. Ct. App. 2008).

Counsel:

State of Kansas: Laura Graham, General Counsel, Kansas Bureau of
Investigation, 1620 SW Tyler, Topeka, Kansas 66612, 785-296-8207.

Defendants: Dan Owen, Polsinelli Shughart, 700 West 47th Street, Suite 1000,
Kansas City, Missouri 641 12,816-395-0671.

7. Slate v. Brouhard, 2005CR1042.

Sheriffs deputy was dispatched to a home following a 91 1 call for a domestic
disturbance. On the way to the scene, dispatch informed the deputy that the caller
had called back to “cancel” the first 91 1 and that the caller was unable to talk.
Suspicion alerted to a possible domestic violence situation, the deputy stopped a
distance from the home and waited for back up. While waiting, the deputy
observed an individual exit the home and begin loading a vehicle. After checking
with dispatch supervisors for guidance, the deputy made contact with the
individual and inquired before a “pat-down” if the person had anything on him
that would hurt the deputy. The individual responded that he had needles in his
pocket. The deputy removed the contents of defendant’s pocket and found illegal
substances. The defendant moved to suppress. I denied the motion. My ruling

92

837

was affirmed by the Kansas Court of Appeals, 225 P.3d 780 (Kan. Ct. App.

2010 ).

Counsel:

State: Charles Branson, District Attorney, 1 1 1 East 1 1th Street, Lawrence, Kansas
66044, 785-766-7892.

Defendant: I have searched my records and have not been able to locate the name
or contact information for trial defense counsel. In his appeal, defendant was
represented by Randall L. Hodgkinson, Kansas Appellate Defender Office, 700
SW Jackson Street #900, Topeka, Kansas 66603, (785) 296-5484.

8. Kershenbaum v. Fasbinder, 2004CV294. Opinion dated Jan. 6, 2006
supplied.

Kershenbaum created a revocable trust to support himself and his wife during
their lives and to distribute his estate after their death. As part of the testamentary
distribution, he created four separate testamentary trusts. A dispute arose over
language in the trust and whether it created a requirement for mandatory or
discretionary payments by the trustee. Fasbinder sued. 1 determined that the
language created a discretionary trust and granled summary judgment to
Kershenbaum. The Kansas Court of Appeals affirmed my ruling. 1 70 P.3d 922
(Kan. Ct. App. 2007).

Counsel:

Kershenbaum: David R. Frensley, 2 Emanuel Cleaver II Boulevard, Kansas City,
Missouri 64112, 816-531-5262.

Fasbinder: Jeffrey R. King, Lathrop & Gage, 2345 Grand Boulevard, Kansas City,
Missouri 64 1 08, 8 1 6-292-2000.

9. State v. Streitberger, 2006CR1665.

The defendant was charged with rape. The case involved complex issues of DNA
evidence. The alleged crime scene had a significant number of DNA loci, which
were tested. The loci produced alleles from a number of different individuals
present at the scene at the relevant time. Some of the short tandem repeats from
the alleles had degraded. The jury was presented with complex scientific
evidence about DNA testing, test results and who the known DNA contributors
could be for the samples. Following ajury trial, the defendant was found not
guilty.

Counsel:

State: Angela Wilson, Sedgwick County District Attorney’s Office, 535 North
Main, Wichita, Kansas 67203, 785-69 1 -53 72.

Defense: Angela Keck, Angela Keck Law Offices LLC, 122 North Cherry,

Olathe, Kansas 66061, 913-782-9720.

93

838

10. Fancher Enters., LLC v. Gentle Denlisiy , PA, 2004CV575. Opinion dated
Nov. 7, 2005 supplied.

This was a contract dispute between a landlord, a contractor and a business
building contracting to building out an office space. At the conclusion of the
project the parties could not agree on the cost. The contractor filed claims against
the landlord for foreclosure of a mechanics lien, breach of contract and quantum
meruit. The contract between the landlord and the contract was unambiguous and
this claims was resolved on summary judgment in favor of the landlord. The
contract between the contractor and business was not specific in many areas. The
factual issues between the two remaining parties were resolved in a jury trial.

Counsel:

Fancher: Michael A. Millett, no contact information available

Gentle Dentistry, PA: Shon Qualseth, Thompson, Ramsdale & Qualseth, 333

West 9th Street, Lawrence, Kansas 66044, 785-841-4554.

d. For each of the 10 most significant opinions you have written, provide: (1)

citations for those decisions that were published; (2) a copy of those decisions that
were not published; and (3) the names and contact information for the attorneys
who played a significant role in the case.

1. Morales v. Youngquist , 0 2CV635. Opinion supplied in response to 13c.
Counsel:

Plaintiffs: Bruce Plenk and Max Kautsch, 16 Hast 13th Street, Lawrence, Kansas,
66044, 785-840-0077.

Defendants: Chris Miller, 645 Country Club Terrace, Lawrence, Kansas 66049,
785-841-2110.

2. Stale v. Richardson, 06CR768. Opinion supplied in response to 13c.
Counsel:

State: Amy McGowan, Assistant District Attorney, 1 1 1 East 1 Ith Street,
Lawrence, Kansas 66044, 785-832-5318.

Defendant: Thomas Johnson, Petefish, Immel, Heeb & Hird, L.L.P., 842
Louisiana Street, P.O, Box 485, Lawrence, Kansas, 785-843-0450.

3. Miller v. Johnson, 04CV704. Opinion supplied in response to 1 3c.
Counsel:

Plaintiff: William Skepnck, Skepnek Law Firm, PO Box 442226, Lawrence,
Kansas 66044, 785-856-3100.

Defendant: Bruce Kcplinger, Norris & Keplinger, LLC, 6800 College Boulevard,
Suite 360, Overland Park, Kansas 6621 1, 913-323-3185.

94

839

4. Guindon v. Culligan, 04CV714. Opinion supplied in response to 13c.
Counsel:

Plaintiff: Tom Theis, Foulston Siefkin LLP, 5344 South Kansas Avenue, Topeka,
Kansas 66603, 785-233-3600.

Defendant: Trey Meyer, 843 New Hampshire Street, P.O. Box 4512, Lawrence,
Kansas 66044, 785-317-4685.

5. Stale of Kansas. Dep 7 of Revenue v. Blomgren , 05CV229. Opinion
supplied in response to 13c.

Counsel:

State of Kansas: Laura Graham, General Counsel, Kansas Bureau of
Investigation, 1620 SW Tyler, Topeka, Kansas 66612, 785-296-8207.

Defendants: Dan Owen, Polsinelli Shughart, 700 West 47th Street, Suite 1000,
Kansas City, Missouri 64 1 1 2, 8 1 6-395-067 1 .

6. Fasbinder v. Kershenbaum, 04CV294. Opinion supplied in response to
13c.

Counsel:

Kershenbaum: David R. Frensley, 2 Emanuel Cleaver II Boulevard, Kansas City,
Missouri 64 1 1 2, 8 1 6-53 1 -5262.

Fasbinder: Jeffrey R. King, Lathrop & Gage, 2345 Grand Boulevard, Kansas City,
Missouri 64108, 816-292-2000.

7. West Meadows Condominium Ass 'n v. Davis, 04CV206. Opinion
supplied.

Counsel:

West Meadows: Chris Miller, 645 Country Club Terrace. Lawrence, Kansas
66049, 785-841-2110.

Countrywide: Matthew Grundy, 1 9 North Water Street, Liberty, Missouri 64068,
816-479-2384.

8. Slate v. Mejia , 2005CR949. Opinion supplied.

Counsel:

State: Trent Krug, United States Attorney’s Office for the District of Kansas, 500
State Avenue, Suite 360, Kansas City, Kansas, 913-551-6730.

Defendant: Juanita Carlson, 1046 New Hampshire, Suite 52, Lawrence, Kansas,
785-749-5986.

95

840

9. State v. Smith , 2007 CR 303. Opinion supplied.

Counsel:

State: Angela Wilson, Sedgwick County District Attorney’s Office, 535 North
Main, Wichita, Kansas 67203, 785-691-5372.

Defendant: Wendy Newell, Newell Law Office, 5 1 2 East 9th Street, Lawrence,
Kansas, 785-838-4100.

10. Fancher Enterprises, LLC v. Gentle Dentisty, PA, 2004CV575. Opinion
supplied in response to 13c.

Counsel:

Eancher: Michael A. Millett, no contact information available

Gentle Dentistry, PA: Shon Qualseth, Thompson, Ramsdale & Qualseth, 333

West 9th Street, Lawrence, Kansas 66044, 785-841-4554.

e. Provide a list of all cases in which certiorari was requested or granted.

These are the citations to the appellate cases. Opinions in my district court cases
are unpublished.

State V. Drouhard , 225 P.3d, 2010 WL 744792 (Kan. Ct. App. 2010).

State v. Richardson, 218 P.3d 1 197, 2009 WL 3837626 (Kan. Ct. App. 2010).

State v. O'Farrell, Jr.,216 P.3d 191, 2009 WL 3081369 (Kan. Ct. App. 2009).

Stare v. Kane, 203 P.3d 734, 2009 WL 862448 (Kan. Ct. App. 2009).

State v. Haney, 200 P.3d 503, 2009 WL 3 11 8 1 1 (Kan. Ct. App. 2009).

Blomgren v. Kansas Dep 't of Revenue, 40 Kan. App. 2d 208, 191 P 3d 320

Crim v. Crim, 40 Kan. App. 2d 367, 196 P.3d 375 (Kan. Ct. App. 2008).

City of Lawrence v. Gragg, 1 62 P.3d 66, 2007 WL 2080504 (Kan. Ct. App.
2007).

Kershenbaum v. Fasbinder, 170 P.3d 922, 2007 WL 4158189 (Kan. Ct. App.
2007).

City of Lawrence v. Youngquist , 152 P.3d 1 10. 2007 WL 570292 (Kan. Ct. App.
2007).

State V. Wigfall, 146 P.3d 709, 2006 WL 3409786 (Kan. Ct. App. 2006).

96

841

Wes t Meadows Condominium Ass'n, Inc. v. Davis , 146 P.3d 239, 2006 WL
3353773 (Kan. Ct. App. 2006).

f. Provide a brief summary of and citations for all of your opinions where your
decisions were reversed by a reviewing court or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings. If
any of the opinions listed were not officially reported, provide copies of the
opinions.

State v. Richardson , 218 P.3d 1197, 2009 WL 3837626 (Kan. Ct. App. 2010).

The appellate court affirmed all substantive rulings, but reversed and remanded
for a hearing to determine whether the indigent defendant had the ability to pay
his court-appointed attorney’s fees.

Crim v. Crim, 40 Kan. App. 2d 367 (2008). Plaintiff sought a protection from
abuse restraining order. I denied petitioner’s request based on insufficient
jurisdiction. Plaintiff had received various protection order rulings recently in the
domestic division of the district court. The Kansas Court of Appeals reversed,
ruling that the plaintiffs domestic proceedings did not bar her from pursuing
simultaneous protection from abuse orders.

g. Provide a description of the number and percentage of your decisions in which
you issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored.

All of my district court opinions were unpublished. The opinions are placed in
the court file and stored at the Douglas County Clerk’s Office.

h. Provide citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, provide copies of the opinions.

Miller v. Johnson , 04CV704. Pending before the Kansas Supreme Court.

Opinion supplied in response to 1 3c.

State v. Richardson, 06CR768, aff'd in part, rev'd in port, 218 P.3d 1197,2009
WL 3837626 (Kan. Ct. App, 2010). Opinion supplied in response to 13c.

i. Provide citations to all cases in which you sat by designation on a federal court of
appeals, including a brief summary of any opinions you authored, whether
majority, dissenting, or concurring, and any dissenting opinions you joined.

I have not sat by designation on a federal court.

14. Recusal: If you are or have been a judge, identify the basis by which you have assessed
the necessity or propriety of recusal (If your court employs an "automatic" recusal system
by which you may be recused without your knowledge, please include a general

97

842

description of that system.) Provide a list of any cases, motions or matters that have
come before you in which a litigant or party has requested that you recuse yourself due to
an asserted conflict of interest or in which you have recused yourself sua sponte. Identify
each such case, and for each provide the following information:

a. whether your recusal was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any other person or interested party; or if you
recused yourself sua sponte;

b. a brief description of the asserted conflict of interest or other ground for recusal;

c. the procedure you followed in determining whether or not to recuse yourself;

d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any
other ground for recusal.

I recused myself from a handful of cases over the three years I was a district court
judge. I did not keep a list of these cases, nor do I recall the names or specific
facts of the cases. I recused myself from a case if required by the Kansas judicial
cannons, which require disclosure if the judge’s impartiality might reasonably be
questioned, where the judge has a personal bias or prejudice toward a party or the
party’s lawyer or personal knowledge of disputed facts in the proceeding. I can
only recall recusal from a small number of cases where I had a personal friendship
with one of the parties or the party’s lawyer that could create the appearance of
bias.

15. Public Office, Political Activities and Affiliations :

a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, state chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.

Kansas Attorney General, appointed in January 2008 by then-Kansas Governor
Kathleen Sebelius. I ran unsuccessfully for reelection in 2010.

b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election committee. If you have ever
held a position or played a role in a political campaign, identify the particulars of
the campaign, including the candidate, dates of the campaign, your title and
responsibilities.

I ran unsuccessfully for Kansas Attorney General in 2010. I have made financial
contributions to political candidates and, during the course of the 2010 campaign.

98

843

appeared and/or spoke at fundraisers for other candidates. I did not keep a
calendar of appearance for other candidates at fundraisers and any comments
were usually brief introductions. 1 can recall from my memory appearing at
fundraising events for Tom Adrian, Mike Slattery, Paul Davis, Gene Riordan, and
Melanie Meier for Kansas House of Representatives; Chris Biggs for Kansas
Secretary of State; Tom Holland for Kansas Governor; and Dennis McKinney for
Kansas Stat^ Treasurer. I recall appearing at an event for Laura Kelly for Kansas
Senate and several events for Rick Guinn for Johnson County, Kansas District
Attorney in the 2008 election cycle. Additionally, I supported fundraising events
for Terry Goddard, Attorney General of Arizona; Dong Gansler, Attorney General
of Maryland; Dustin McDaniel, Attorney General of Arkansas; and Thurbert
Baker, Attorney General of Georgia in the 2010 election cycle. I may have
supported candidates for attorney general in the 2008 cycle, but I do not have
records as to which candidates.

As attorney general, 1 participated in the Democratic Attorney General’s
Association from February 2008 to December 2010. 1 attended conferences and
in the 2008 election cycle served on the groups allocation committee which made
decisions about financial contributions for attorney general candidates across the
county.

I also stood for retention election as a district court judge in 2006.

16. Legal Career: Answer each part separately.

a. Describe chronologically your law practice and legal experience after graduation
from law school including:

i. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;

1993 - 1994: 1 served as a law clerk lo Judge Deanell R. Tacha, U.S.

Court of Appeals for the Tenth Circuit.

ii. whether you practiced alone, and if so, the addresses and dates;

I have not practiced alone.

iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.

99

844

1994-2005

Sham berg. Johnson & Bergman
2600 Grand Boulevard
Kansas City, Missouri 64108
Partner (1998 - 2005)

Litigation Associate (1994 - 1998)

2008-2011
State of Kansas
120 SW 10th Avenue
Topeka, Kansas 66612
Kansas Attorney General

2011 - present
Stevens & Brand
900 Massachusetts
Lawrence, Kansas 66044
Partner

iv. whether you served as a mediator or arbitrator in alternative dispute
resolution proceedings and, if so, a description of the 10 most significant
matters with which you were involved in that capacity.

The only time I served as a mediator was during my time as a district court
judge.

b. Describe:

i. the general character of your law practice and indicate by date when its
character has changed over the years.

I practiced law at Shamberg, Johnson as a litigation associate (1994-1998)
and later as a partner (1998-2005). I represented individuals and
businesses in environmental, products liability, business torts and personal
injury cases. I represented a small number of clients in white-collar
criminal matters.

As Kansas Attorney General (2008-201 1), 1 handled a variety of legal
matters representing the state. 1 oversaw criminal investigations, wrote
legal opinions, argued in appellate court and prosecuted criminal matters.

I focused on increasing the office’s consumer protection efforts and
increased consumer recoveries significantly during my term. I
emphasized fighting Medicaid fraud, and the office recovered more during
my three years in office than in all the previous years of the Kansas
Medicaid Fraud division combined.

100

845

As a partner at Stevens & Brand (201 1-present), I represent a variety of
business and public entities in various legal issues. 1 counsel these clients
on employment matters, business issues and appear in court as required.

ii. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.

In private practice I represented individuals, businesses and governmental
entities in a variety of litigation and trial work.

As attorney general, I represented the state in defending and prosecuting
claims. I oversaw an office of attorneys and investigators and developed
the plans and priorities the office would pursue. I participated in criminal
proceedings, charging decisions, and case disposition decisions. 1
participated in civil cases, litigation strategy, settlement negotiations and
appellate matters.

c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.

1 have appeared in court frequently throughout my legal career. In private
practice I appeared frequently in state and federal court for motions, hearings and
trials. 1 argued cases in the state appellate courts in Kansas and Missouri. Asa
state district court judge I handled a civil and criminal docket that included
frequent hearings and trials. As attorney general, I prosecuted two murder cases
and argued before the Supreme Court of the United States.

i. Indicate the percentage of your practice in:

1. federal courts: 35%

2. state courts of record: 65%

3. other courts:

4. administrative agencies:

ii. Indicate the percentage of your practice in:

1. civil proceedings: 70%

2. criminal proceedings: 30%

d. State the number of cases in courts of record, including cases before
administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.

I tried approximately 14 cases to verdict. I was chief counsel in approximately
five of these cases and co-counsel in approximately nine cases.

101

846

i. What percentage of these trials were:

1 . jury: 80%

2. non-jury: 20%

e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any
oral argument transcripts before the Supreme Court in connection with your
practice.

I assisted in drafting and editing the briefs in Kansas v. Colorado, No. 105, Orig.,
129 S. Ct. 1294, 173 L. Ed. 2d 245 (2009) and I argued the case before the
Supreme Court of the United States on December 1 , 2008. The briefs and
transcript of argument are supplied.

I assisted in drafting and editing a Motion for Leave to File Petition and a Reply
in Kansas v. Nebraska, No. 126, Orig. (2010). The case is currently pending
before the Supreme Court of the United States. The briefs aTe supplied.

I assisted in drafting and editing an amicus brief representing 47 states and the
District of Columbia in Snyder v. Phelps , 130 S. Ct, 1737, 176 L. Ed. 2d 21 1
(2010). The amicus brief is supplied.

I assisted in editing and reviewing the brief in Kansas v. Ventris, 129 S. Ct. 1841,
173 L. Ed. 2d 801 (2009). The brief is supplied.

Additionally, the Kansas Attorney General’s Office filed briefs in the following
cases, but I did not participate in the drafting or editing:

United States v. Comstock, 130 S. Cl. 1949, 176 L. Ed. 2d 878 (2010).

Carr v. United Slates, 1 30 S. Ct. 2229, 1 76 L. Ed. 2d 11 52 (20 1 0).

Astra USA, Inc. v. Santa Clara County , 131 S. Ct. 61 (2010).

Kansas v. Morton, 129 S. Ct. 903, 173 L. Ed. 2d 158 (2009).

Van De Kamp v Goldstein, 1 29 S. Ct. 855, 1 72 L. Ed. 2d 706 (2009).

Kansas v. Smith, 129 S. Ct. 628, 172 L. Ed. 2d 639 (2008).

Marlin v. Kansas, 129 S.Ct. 192, 172 L. Ed. 2d 138 (2008).

As attorney general I signed on to several amicus briefs as a signatory, but did not
participate in drafting. These cases are listed below.

Camreta v. Greene, 09-1454, 2010 WI, 5168883.

102

847

Commonwealth of Kentucky v. King, 09-1272, 2010 WL 4803139.

Chamber of Commerce v. Whiting , 09-1 15, 201 0 WL 4339888.

Skinner v. Switzer, 09-9000, 2010 WL 3641075.

American Elec. Power Co v. Connecticut , 10-174, 2010 WL 3501263.

Ortiz v. Jordan , 09-737, 2010 WL 3265256.

Williamson v. Mazda Motor of Am., Inc., 08-1314, 2010 WL 3167303.

Camreta v. Greene, 09-1454, 2010 WL 2691594.

Belleque v. Moore , 09-658, 2010 WL 2690587.

Harrington v. Richter, 09-587, 010 WL 2005329.

Michigan v. Bryant, 09-150, 2010 WL 184821 1.

MagwnocI v. Patterson , 09-158, 2010 WL 565215.

Holland V. Florida, 09-5327, 2010 WL 383623.

McDonald v. City of Chicago, 08-1521, 2009 WL 4378909.

Briscoe v. Virginia, 07-1 1191, 2009 WL 3652660.

Merck & Co., Inc. v. Reynolds, 08-905, 2009 WL 3495343.

Wood v, Allen, 08-9156, 2009 WL 31 15802.

Graham Cnry. Soil & Water Conservation Dist. v. United States ex rel. Wilson,
08-304, 2009 WL 2903917.

Padilla v. Kentucky, 08-651, 2009 WL2564713.

Citizens United v. Fed. Election Comm 'n, 08-205, 2009 WL 2365205.

National Rifle Ass’n of Am.. Inc. v. City of Chicago, 08-1521, 2009 WL 1970185.

Smith v. Spisak, 08-724, 2009 WL 1556547.

McDaniel v. Brown, 08-559, 2009 WL 1317098.

103

848

Monte jo v. Louisiana, 07-1.129, 2009 WL 1007122.

Broad v. Weigel 08-1128, 2009 WL 1009824.

Cuomo v. The Clearing House Ass 'n, L.L.C . , 08-453, 2009 WL 583791 .

Rivera v. Illinois, 07-9995, 2009 WL 216162.

District Attorney 's Office far the Third Judicial District v. Osborne, 08-6, 2008
WL 5462088.

Montejo v. Louisiana, 07-1529,2008 WL 5417429.

Hawaii v. Office of Hawaiian Affairs , 07-1372, 2008 WL 5236222.

Vermont v. Brillon , 08-88, 2008 WL 4933583.

Cuomo v. The Clearing House Ass'n, L.L.C., 08-453, 2008 WL 4887719.

Graham Cnty. Soil & Water Conservation Dist . v. United Slates ex rel. Wilson,
08-304, 2008 WL 4600054.

Bell v. Kelly, 07-1223, 2008 WL 4496589.

Melendez-Diaz v. Massachusetts, 07-591, 2008 WL4185394.

Arizona v. Johnson, 07-1122, 2008 ,V L 4154534.

Pacific Bell Tel. Co. v. Linkline Commc'ns, Inc., 07-512, 2008 WL 4154540.
Wyeth v. Levine, 06-1246, 2008 WL 3851613.

Entergy Corp. v. Riverkeeper, Inc., 07-588, 2008 WL 2847075.

Smith v. El-Amin , 07-1485, 2008 WL 2676561.

Aliria Group. Inc. v. Good, 07-562, 2008 WL 2489866.

Bartlett v. Strickland, 07-689, 2008 WL 2511784.

Carcieri v. Kemplhorne, 07-526, 2008 WL 2445505.

Oregon v. Ice, 07-901, 2008 WL 2367232.

Wilcox v. United States, 07-1336, 2008 WL 2219961.

104

849

Giles v. California , 07-6053, 2008 WL 859391.

District of Columbia v. Heller , 07-290, 2008 WL 405558.

Indiana v. Edwards , 07-208, 2008 WL 449963.

Iowa v. Bentley, 07-886, 2008 WL 534802.

In private practice, I assisted in drafting a petition in opposition to certiorari in
Subaru of America, Inc. v. Compton , 519 U.S. 1042, 1 17 S. Ct. 61 1, 136 L. Ed. 2t
536(1996). The brief is provided.

17. Litigation : Describe the ten (10) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give a capsule summary oi
the substance of each ease. Identify the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case:

a. the date of representation;

b. the name of the court and the name of the judge or judges before whom the case
was litigated; and

c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.

1. Kansas v. Colorado, No. 105 Orig. (Supreme Court of the United States.)

This is a long-standing legal dispute between Kansas and Colorado over water in the
Arkansas River. In 2008 I developed the legal strategy to seek reimbursement from
Colorado for the legal expenses Kansas incurred in its successful claim against Colorado
for overuse of Arkansas River water. After working with the team to draft the legal
briefs in the Supreme Court of the United States, I argued the case on December 1, 2008.
Kansas’ argument was that the Court should use its own procedural rules to determine
costs recoverable by the prevailing party, rather than procedural rules developed by
Congress for the lower federal courts. In Kan sas v. Colorad o. 129 S. Ct. 1 294, 1 73 L.

Ed. 2d 245 (2009), the Court ruled that its own procedural rules apply to establishing
which litigation costs are reimbursable in original actions under Article III of the United
States Constitution. The Court, however, denied Kansas’ claim for additional
reimbursement. I worked on the ease from February 2008 to March 2009 when the Court
issued its opinion. My co-counsel for Kansas was John Draper, Montgomery &

Andrews, 325 Paseo de Peralta, Santa Fe, NM 87501, 505-982-3873. Opposing counsel
for Colorado was Attorney Genera! John W. Suthers, 1 525 Sherman Street, Denver CO
80203, 303-866-4500.

105

850

2. Kansas v. Nebraska and Colorado, No. 126 Orig. (Supreme Court of the United
States).

This is a long-standing legal dispute between Kansas, Nebraska and Colorado over water
in the Republican River Basin. From 2008 to 2010, 1 led the team developing the legal
strategy to enforce the legal agreement reached in 2003 dividing water in the Republican
River between these states. A settlement was reached in 2003 to divide the water,
however Nebraska has continued its overuse in contravention of the agreement- The case
has proceeded through an administrative process in the Republican River Compact
Administration, which was unsuccessful. Next the matter was tried before an arbitrator
in a non-binding arbitration that was similarly unsuccessful in resolving the dispute. In
March of 201 0, Kansas filed a motion to reopen the case in the Supreme Court of the
United States to seek enforcement of the Court’s 2003 decree. The matter is currently
pending before the Court. I began working on the case in the spring of 2008 and
continued through January 201 1. I developed the legal strategy of the case, edited and
assisted in drafting the briefs, and met with the Solicitor General’s office to discuss the
litigation and the Supreme Court’s request that the Solicitor General file a brief. My co-
counsel for Kansas was John Draper, Montgomery & Andrews, 325 Paseo de Peralta,
Santa Fe, NM 87501, 505-982-3873. The United States is represented by Ed Rneedler,
Deputy United States Solicitor General, Department of Justice, 950 Pennsylvania Ave,
Washington, D.C. 20530, 202-514-2000. Nebraska is represented by Attorney General
Jon Bruning and David Cookson, Chief Deputy, Nebraska Attorney General’s Office,
2115 State Capitol, Lincoln, NE 68509, 402-471-2682.

3. State of Kansas v. Wilson , Case No. 08-CR-30 (Osborne County District Court

2009) .

On March 25, 2008, in Portis, Kansas, fanner Scott Noel was murdered. I oversaw the
investigation into his murder. Through processing the crime scene and through
investigation, Mr. Wilson was identified as a suspect and charged with several burglaries
and Noel’s murder. In May of 2009, 1 prosecuted Mr. Wilson in the Osbomc County,
Kansas District Court and, following a trial, the jury convicted him of first degree murder
and numerous burglaries. I drafted the pre-trial motions, made all court appearances and
conducted all aspects of the trial. I obtained a life-sentence for Mr. Wilson. I worked on
the case from March 2008 to May 2009. The judge was William Elliott. Defense
counsel was Paul Oiler, Oiler, Johnson & Bittel, L.L.C., 1 1 1 West 10th Street, P.O. Box
851, Hays, KS 67601, 785-623-2966.

4. State of Kansas v. Mireles, Case No. 07-CR-524 (Butler County District Court

2010 ) .

I prosecuted Mr. Mireles for the murder and aggravated rape and sodomy of 18 year-old
Emily Sander. Mr. Mireles murdered Emily and then disposed of her body along the
highway in Woodson County, Kansas and fled to Mexico. My office assisted in
extraditing Mr. Mireles back to Kansas. 1 charged him with rape, aggravated sodomy and
capital murder and prosecuted him in district court in Butler County, Kansas in February

106

851

2010. I obtained a conviction for capital murder and aggravated sodomy. Mr. Mireles
was sentenced to life without the possibility of parole. I worked on the case from the
spring of 2008 until trial in February 2010. The Judge was David Ricke. I was lead
prosecutor; Butler County, County Attorney Jan Satterfield assisted with the case. Jan
Satterfield, Butler County Attorney, 201 West Pine, Suite 1 04, El Dorado, KS 67042,
316-321-6999. Defense counsel was Melanie Freeman-Johnson, Death Penalty Defense
Unit, 714 S.W. Jackson, Suite 200, Topeka, KS 66603, 785-296-6555.

5. State, ex rel. Stephen N. Six, Attorney General v. Kansas Lottery , 286 Kan. 557,
186P.3d 183 (2008).

The attorney general’s office filed an action in district court challenging the
constitutionality of the Expanded Lottery Act. The district court upheld the statute. I
assisted in drafting and editing the brief in the direct appeal to the Kansas Supreme Court.
The proceedings were undertaken to test the constitutionality of the statute to settle the
law before investment and development could begin in building new casinos in the state.
Counsel for Kansas was Mike Leitch, Associate General Counsel, University of Kansas,
245 Strong Hall, 1450 Jayhawk Boulevard, Lawrence, KS 66045, 785-864-3276.

Counsel for Prairie Band Potawatomi Nation was David Prager, III, 3929 SW Friar Road,
Topeka, KS 66610, 816-691-2721. Counsel for Kansas Lottery was Dan Biles, now on
the Kansas Supreme Court, 301 SW 10th Avenue, Topeka, KS 66612, 785-296-3229.

6. Slate ex rel. Stephen N. Six, Attorney General, and Pawnee County Cmty. Health
Org., Inc. v. St. Joseph Mem 7 Hosp., Inc., Case No. 09-CV-61 (Pawnee County District
Court 2010).

Central Kansas Medical Center O'CKMC”) decided to close St. Joseph Hospital in
Lamed, a city of 4,500 in central Kansas. CKMC refused to sell or transfer its building
or its Critical Access Hospital (“CAH”) status to the Pawnee County Community Health
Organization (“PCCH”), an organization formed by Lamed citizens to buy the assets and
keep (he only hospital in town operating. Because St. Joseph was formed as a charitable
hospital, the misuse or waste of its charitable assets fell under my power as attorney
general to review. I worked with our team of lawyers to develop the strategy to save the
hospital. Suit was filed against CKMC seeking to force the transfer of its St. Joseph
Hospital assets to PCCH. Additionally our team worked with community leaders to put a
local sales tax on the ballot to seek long-term funding for the new community hospital.
The case was settled with CKMC transferring its assets to PCCH. Counsel for PCCH
was Jay Fowler, Foulston Siefkin, 155) North Waterfront Parkway, Suite 100, Wichita,
KS 67206, 316-291-9541 and counsel for CKMC was Anthony Rupp, Polsinelli Shugart
PC, 6201 College Boulevard, Suite 500, Overland Park, KS 6621 1, 913-234-7520..

7. Pronold v. Bridgestone/Firestone, 01-CV-05088 (Johnson County District Court
2004).

I represented a young man who was injured in a vehicle roll-over accident caused by a
tread separation on a Firestone tire. I conducted the litigation and handled the two-week

107

852

trial. The jury determined the tire was defective and returned a verdict in favor of my
client. The judge was Janice Russell, Johnson County District Court, Johnson County,
Kansas. The Defense counsel for Firestone was Paul McCausland, Young, Bogle,
McCausland, Wells & Blanchard, P.A., 106 West Douglas, Suite 923, Wichita, KS
67202, 316-265-7841 and defense counsel for defendant KEYS was Kathleen Hardee,
Polsinelli Shughart, Twelve Wyandotte Plaza, 120 West 12th Street, Kansas City, MO
64105,816-395-0644.

8. Bessey v. Genuine Auto Parts, Inc , CL 89895 (Polk County District Court, Dcs
Moines, Iowa 2004).

I represented plaintiff in her claims against a truck driver and his employer in connection
with a collision that injured plaintiff and killed her two-year-old daughter. The plaintiffs
were stopped at a railroad crossing with flashing lights. The defendant truck driver
operated his truck in heavy fog and collided with the plaintiffs. The allegations were that
the company had inadequate policies and training on driving in dangerous conditions and
that the driver was negligent. I handled the litigation. The case was settled shortly before
trial. The judge was Carla T. Schemmel, Polk County District Court, Fifth and Mulberry
Street, Des Moines, IA, 515-286-3772. Counsel for Genuine Auto Parts was William
Fanter, Bradshaw, Fowler, Proctor & Fairgrave P.C., 801 Grand Avenue, Suite 3700, Des
Moines, IA 50309, 515-243-4191.

9. Meyer, as Executor of the Estate of Lola Church, deceased v. Slawson Heating &
Plumbing , 0204-CV-148 (Leavenworth County District Court 2004).

I represented the family of an elderly woman who was killed by carbon monoxide in her
home following faulty repairs and equipment installation by the defendant. As a result of
defendant’s work, dangerous levels of carbon monoxide built up in the home and when
the weather got cold and the furnace operated continuously, lethal levels of CO were
created killing Mrs. Church. The case was settled shortly before trial. Slawson Plumbing
counsel was Michael B. Lowe, Payne & Jones, 1 1000 King, Suite 200, P.O. Box 200,
Overland Park, KS 66225, 913-469-4100. Counsel for Edward Slawson was now-judge
Michael D. Gibbens, Leavenworth County District Court, 601 South 3rd Street,
Leavenworth, KS 66048, 913-684-0408).

10. Thomas v FAG Bearings Corp., 846 F. Supp. 1382 (W.D. Mo. 1994); and Thomas
v. FAG Bearings Corp., 50 F.3d 502 (8th Cir. 1995).

As an associate attorney, I assisted two partners at my firm with state and federal cases
against FAG Bearings Corp. for leaking the chemical TCB into the cities’ ground water
supply contaminating the water. On behalf of the citizens of the two communities, the
suits sought damages to connect residents to a safe supply of clean water. The matter
was settled. Counsel for FAG Bearings was David Oliver, 2600 Grand Boulevard, Suite
1200, Kansas City, MO 64108, 816-561-1888. The judge in the Federal District Court,
Western District of Missouri, was Joseph Stevens; the judge in state court in Newton
County, Missouri was Timothy W. Perigo.

108

853

1 8. Legal Activities : Describe the most significant legal activities you have pursued.

including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organization(s) for whom you performed lobbying activities and describe
the lobbying activities you performed on behalf of such client(s) or organizations(s).
(Note: As to any facts requested in this question, please omit any information protected
by the attorney-client privilege.)

Mortgage Fraud Prosecutions. I worked with state agencies, the United States Attorney’s
Office, and the Federal Trade Commission on combating fraud in the mortgage loan
industry. I served on the National Association of Attorneys Genera! State-Federal T ask
Force on Mortgage Enforcement. My office brought suit against several mortgage
lenders and other businesses such as debt consolidation businesses that were engaged in
defrauding Kansas consumers.

Operation Child Shield Prosecutions. In 2009, concerned about increasing victimization
of children on the Internet, I developed Operation Child Shield in the Kansas A ttorney
General’s Office. This was the first time our office had investigated, charged and
prosecuted child pomographers and those criminals seeking child sexual partners through
the Internet. During 2009 and into 2010, we obtained the equipment and software to
track individuals trading child pornography on peer-to-peer networks, trained my
investigators to run the operation and began to take down these criminals victimizing
kids. In 2010 we convicted and sentenced six individuals for trading child pornography,
had eight on-going cases and another twenty under investigation. In addition, through
our operation we discovered websites where individuals were trading and advertising for
sex with young children. The efforts of Operation Child Shield and other combined
efforts in this area have lead to these sites taking down these sorts of ads and worked to
protect kids from becoming victims.

Medicaid Fraud. I developed, oversaw and implemented an increased emphasis on
cracking down on Medicaid Fraud. Through increased cooperation with the United
States Attorney's Office in Kansas and an increased emphasis on stopping Medicaid
Fraud our team increased significantly Kansas’ recoveries. In the years before 1 started,
the office recovered less than $ 1 million per year in Medicaid Fraud. In my first year we
increased recoveries to $8.7 million, in our second year our team doubled our results and
brought in $17.95 million, and in 2010 we recovered almost $22 million.

Consumer Protection. A similar legal strategy and deployment of resources was
implemented in our consumer protection division. Through an increased effort on
efficient and timely resolution of claims and lawsuits and an increased effort to combat
Internet and other fraud our team significantly increased consumer recoveries for Kansas.
In 2006, less than $ I million was recovered or saved in this division. In my first year, we
increased savings and recoveries to $5.6 million, in year two we double those results and
brought in 8 million, and in 2010 our consumer division recovered $17.3 million in
savings and recoveries.

109

854

I have not performed lobbying activities.

1 9. Teaching : What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.

I have not taught any courses.

20. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest.

None.

21. Outside Commitments During Court Service : Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.

No.

22. Sources of Income : List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding $500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1978, may be substituted here).

See attached Financial Disclosure Report.

23. Statement of Net Worth : Please complete the attached financial net worth statement in
detail (add schedules as called for).

See attached Net Worth Statement.

24. Potential Conflicts of Interest :

a. Identify the family members or other persons, parties, categories of litigation, and
financial arrangements that are likely to present potential conflicts-of-interest
when you first assume the position to which you have been nominated. Explain
how you would address any such conflict if it were to arise.

110

855

I am not aware of any family members or other persons or parties that would
present a conflict-of-interest. The only categories of litigation that may present a
conflict would be matters handled by the Kansas Attorney General’s office during
my tenure, or that were handled by my present law firm, that may be appealed to
the Tenth Circuit Court of Appeals. I would handle all such cases in accordance
with the Code of Conduct for United States Judges and other relevant canons and
statutory provisions.

b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.

As I did as a district court judge, I would continue to examine the applicable
recusal statutes and judicial codes of conduct to ensure I meet these standards. As
I have done previously in the district court context, I would consult with my
colleagues on how they have addressed conflict and recusal issues as an additional
source of guidance. If confirmed, I would carefully apply the recusal statues, and
the relevant canons of the Code of Conduct for United States Judges.

25. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar
Association’s Code of Professional Responsibility calls for “every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving the disadvantaged.” Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.

As attorney general [ encouraged our attorneys to do pro bono work with the Kansas
National Guard and Reserve members who have employment or other issues arising from
deployment or return from deployment. My attorneys have participated in several cases
serving Guard members this way.

I devoted many hours to the legal profession through my work with the Kansas Bar
Association. I served on several committees and on the board of governors. We worked
on issues to improve the profession and better ways to serve consumers of legal services.

In private practice, 1 was appointed to several pro bono cases from the Jackson County,
Missouri Circuit Court. I represented family court and juvenile court clients. I do not
recall the details of these representations. I do recall one juvenile case where 1
represented a young man charged with robbing an occupied dwelling. I took several
statements and depositions and devoted many hours to preparing for trial. A few days
before trial, the prosecutor dismissed all charges. I recall the young man’s name, but his
juvenile records are confidential.

26. Selection Process :

a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
the interviews in which you participated). Is there a selection commission in your

111

856

jurisdiction to recommend candidates for nomination to the federal courts? If so,
please include that process in your description, as well as whether the commission
recommended your nomination. List the dates of all interviews or
communications you had with the White House staff or the Justice Department
regarding this nomination. Do not include any contacts with Federal Bureau of
Investigation personnel concerning your nomination.

I am not aware of any selection commission in my jurisdiction to recommend
candidates for nomination to the Tenth Circuit Court of Appeals. When 1 learned
that there would be a vacancy on the Tenth Circuit Court of Appeals, I contacted
Secretary of Health and Human Services Kathleen Sebelius for recommendations
about how to put my name forward. She put me in touch with attorneys in the
White House Counsel’s Office, and I sent in my resume for consideration. Since
November 2010, 1 have been in contact with pre-nomination officials at the
Department of Justice. On January 12, 201 1, 1 interviewed with attorneys from
the White House Counsel’s Office and the Department of Justice. On March 9,
2011, the President submitted my nomination to the Senate.

b. Has anyone involved in the process of selecting you as a judicial nominee

discussed with you any currently pending or specific case, legal issue or question
in a manner that could reasonably be interpreted as seeking any express or
implied assurances concerning your position on such case, issue, or question? Tf
so, explain fully.

No.

112

857

FINANCIAL DISCLOSURE REPORT
NOMINATION FILING

Report Required by the Ethics
in Government Act of 1978
(5U.SC.app . » Wi-Ul)

UPtMOn Reporting (Ia*| name, first. middle initial)

Six. Stephen N.

2 . Court or OfR»r.iietlon

United Stator Court of Appeals for the Tenth Circuit

3. Dote of Report

03/09/20! 5

4. "nil* (Articl* III podge, Indicate active at ieit:oe Mini;
maghinue jiidgea mdicaro fell- or part-time)

Circuit fudge

So. Report Type {cheek appropriate type)

[^/~| Nomina lion, Dat»3W10t t

| ) lnW*l | "j Annual j J Fiiul

a. Repnf dug Ptrloif

1/1/201 0

3/9,10! J

St>. j } Amended Report

7. Chamber* or Office

Stevens St Brand

900 Massachusetts St

Lawrence. KS 66M4

8, On the bsHj of the Information contained In (ht* Report end any j

nodllkatloM pertain irg thereto, k la, In my opinion, In compliance

with applicable fnw» and regulations. 1

HevlesHng OfflcrT Fkir»

IMPORTANT NOTES: The inirructionr accompanying this farm mast be followed. Complete at\ parts,
checking the NONE bon for each port where you have no reportable information. Sign on last page.

[.POSITIONS • (Rt porting IniltUttai only; lit pp, Sf-tl of fUlng Imiruc Pom)
|~~] NONE (No reportable positions.)

EQSIXION

L Fanner Sevens & Brand

2 .

II. AGREEMENTS . (Ri porting tnJinJuel oitfp; He pp. 14-16 of filing initmctioni.)
I 1 NONE (No reportable agreements.)

DATS

1. 1995

Shwnberg. Johnson Sr. Bergman, Retirement Plan with former law firm, jus control

858

FINANCIAL DISCLOSURE REPORT

i Nome of Person Reporting

Dilc of Report

Page 2 of 6

Six, Stephen N,

| 03/09/201 1

III. NON-INVESTMENT INCOME • (Reporting Indiyidli&l nndipoutr;i/rpp. J7‘2i of filing inttrUcUCKtJ
A. Filer's Non-Investment Income
| _ 1 NONE (Wo reportable non-investment income.)

DATE

SOURCE AND TYPE

INCOME
(yours, not spouse's)

1.201 l-YTD

Sievem & Brand, partnership agreement

Jl3.B7l.22

2.201 1

Stale of Kansu. salary

S3.680.00

3.2010

Stale of Kansas. salary

$95.69853

4.2009

Stale or Kansas, ssi&v

$96,939.10

5.2009

Shscr.bcrg, Johnson & Bergman, partnership agreement

$73,792.60

B, Spouse's Ncn-ln vestment Income - If you WN wurfiJ during any portion aftht rtportingytnr, complete this taction.
(Dollar amount net required txcept for honor a/ to J

□ NONE (Wo reportable non-investment income.)

DATE SQ.URCE_AfriD.IYFE

1.2011

State of Kansas, salary

2.2010

Slate of Kansas, salary

3.2010

Shook, Hardy & Bacon, lawyer, legal writing consulting

4.

IV. REIMBURSEMENTS — Iro»u/<drtirrf.3n, lodging, food, entertainment.

f Includes rheut to spouse vul dependent children: inpp. 25-27 of filing hMruttiav.)

P 1 NONE (No reportable reimbursements.)

SOURCE DATES LOCATION

ITEMS PAID OR.JROVJDED

4.

PURPOSE

859

FINANCIAL DISCLOSURE REPORT 1

Name of Perron Reporting

Uat* of Htport

Page 3 of 6

i

Stx.SiepbenN.

(H/09/201 1

V. GIFTS « (Include I thou to rpentt and dfptndtnt ihildrtn; set pp.2S-3t of filing injtrmtioat )

1 | NONE (No reportable gifts.)

SOURCE DESCRIPTION VALUE

L fuempl

%

3 .

4 .

5.

VI. LIABILITIES . (Inchidu ihtuc of ipeuit and itptn/tni children; tit pp. 32-JJ of filing unlrutnotuj
[✓* | NONE (No reportable liabilities.)

VALUE CODE

860

FINANCIAL DISCLOSURE REPORT

Name oFPcnnn R-p-r ring

Dale of Report

Page 4 of 6

j SI*, Stephen N.

03AKVMJ1 5

VII. INVESTMENTS and TRUSTS — incenu, rclut, Iwntacllon* (Include* tJ*en of tpa and dependent children; tee pp. 34-60 of filing Inrtnicaons.)
[ ] NONE (No reportable income, assets , or transactions.)

A.

DcicrtpCw of Aiaet«

(including Inut iuoq)

3.

repotting period

C.

Grow valuo al tod
of repooing pwiod

Trarnacii

D.

ni during reporting period

Plate "(X)* after cacti atict
{xempi from prior diidtmira

<i>

Amount
Code I

(A-fl)

(2>

Type (e g..

or ini)

U>

Value

Cote 2
(J-D

(7>

Value

Method

CodeS

<Q-w>

0)

Type(e.g.,
buy, wit,
redemption)

U)

Dais

mm/dd/yy

0)
Value
Code 2
(i-Pt

W
Gain
Coda 1
(A-H)

<«>

Identity of
buyetAdlcr
(Ifprivaie

Iranwcrion)

i.

MS FT

N °”

J

T

Exempt

2,

MOT

■

3.'

MM1 (formerly MOT)

■

J

T

4.

MS! (formerly MOT)

None

J

T

S.

XOM

A

Dividend

J

T

Exempt

B

|

6.

PC.

A

Dividend

J

T

Exempt

1

HSP

A

Dividend

3

■

Exempt

1

Vanguard .500 Index Fund

■

K

T

Exempt

1

Vanguard Total Rond Mkt

A

Dividend

K

■

r

American Century-Growth Fund

None

K

T

fir

Anicricisn Ccniury-Lcanfog Qumi-529

None

M

T

Exempt

12

TIAA-CREF Growth Fund

None

H

T

Exempt

13.

Commerce Bunk Account

A

K

T

Exempt

14.

Diaries Schwab Account

B

J

T

Exempt

IS,

Vanguard 500 Index Fund

Dividend

M

■

16.

Sfumherg, fohnion & Bergman Retirement
Plan, no control

None

.....

N

a

Exempt

17.

Kansu Public Employ tea Retirement
System, no eon trol

A

Interest

K

T

Ex cm pi

<5« Column riood 3))

A-SI.COOwlen
F=i5ft001 -llliOJXIO
j «in/w>OT

N »n«>.QO| . iSOOQOO
P3 -JIS.MOUCl -t»,CM,0C
Q^Appnittl
U uBock VuJm

OtllK.COi -K.CODOOI
B,oii5x»i -s»ooa
oijsoo.an -{1000.000

C-12.MI • 15.000
Hi wia»a)i -jsiico.oao
U>4».00t -tioo.xo
PI *{10X5011 -J5IWMIM
N aMut -Jan iSttttO 000
SaiUunnul
W -Ejbmairri

D -$5,001 -{15,000
Hi "More rkrtfl J5.COO.COI)

M -*100.001 -{150.000
pi =$s.<x»xui ■ {lajmooft

T -Cub Marie cl

E-iU.ooi - iso. ora

861

FINANCIAL DISCLOSURE REPORT

Name cf Person Reporting

Cate of Report

Page 5 of 6

Six, Stephen N.

03105/2011

VJII. ADDITIONAL INFORMATION OR EXPLANATIONS . {IlufiaU* part cffttpori.)

FINANCIAL DISCLOSURE REPORT

Name of Pemi n Reporting

Dale of Report

Page 6 of 6

Sir, Stephen N.

03/09/201!

IX. CERTIFICATION.

I certify that all information given above (including information pertaining to myipowr® and minor or dependent ehfidrea. If «ny) it
Dccurate, tree, and complete la the beat of nty knowledge oad belief, and thnlony information not reported wul Withheld becanse It met applicable statutory
provision* permitting ncui'disckisorc.

I fur (her certify that corned Income from outside employment and honoraria ond the acceptance of gilts which have been reported arc in
compliance with the provisions of 5 US.C. app. § 501 «t, scq.,5 DAC. 5 7353, and Judicial Conference regulation*.

NOTE; ANY INDIVIDUAL WHO KNOWINGLY AN1> WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY PE SUBJECT TO CIVIL
AND CRIMINAL SANCTIONS (5 US.C. app. S 1W)

FILING INSTRUCTIONS

Mai! signed original and 3 additional copies to:

Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301

One Columbus Circle, N.E.

Washington . D.C, 20544

862

FINANCIAL STATEMENT
NET WORTH

Provide a complete, current financial net worth statement which ttemi2es in detail all assets (including bank
accounts, real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts,
mortgages, loans, and other financial obligations) Df yourself, your spouse, and other immediate members of your
household.

ASSETS

LIABILITIES 1

i Cash on hand and in banks

16

000

Notes payable to banks-securcd | j

U.S, Government securities

Notes payable to bonks-unsccured

Listed securities - see schedule

432

680

Notes payable to relatives

Unlisted securities

Notes payable to others

Accounts and notes receivable;

Accounts and bills due

3

600

Due from relatives and friends

Unpaid income tax

Due from others

Other unpaid income and interest

Doubtful

Real estate mortgages payable - see
schedule

262

200

heal estate owned - see schedule

910

000

Chattel mortgages and other liens payable

Real estate mortgages receivable

Other debls-ilemizx:

Autos and oilier personal property

18

000

Cash vatuedife insurance

Other assets itemize:

Total liabilities

265

m

Commerce Bank-Shamberg, Johnson &
Bergman Retirement Plan

265

000

Net Worth

i

405

880

Kansas Public Employees Retirement Plan

H :

000

■i

Total Assets

■1

m

680

Total liabilities and net worth

i

671

680

CONTINGENT LIABILITIES

GENERAL INFORMATION

As endorser, comaker or guarantor

Arc any assets pledged? (Add schedule)

No

On leases or contracts

■

■

Are yon defendant in any suits or legal
actions?

No

! Legal Claims

Have you ever taken bankruptcy?

No

Provision for Federal Income Tax

Other special debt

863

FINANCIAL STATEMENT
NET WORTH SCHEDULES

Listed Securities

HSP

$1,600

MSFT

11,000

MGI

200

MMI

6,960

MSI

4,706

PG

5,399

VVI

500

XOM

10,392

American Century Growth Fund

42,070

American Century Learning Quest 529 Plan

143,715

TIAA-CREF Growth Fund

46,000

Vanguard 500 Index Fund

147.523

Vanguard Total Bond Market Index Fund

12,615

Total Listed Securities

$432,680

Real Estate Owned

Personal residence

$445,000

Second home

465,000

Total Real Estate Owned

$910,000

Real Estate Mortgages Payable

Personal residence

$159,200

Vacation home

103,000

Total Real Estate Mortgages Payable

$262,200

865

Senator Klobuchar. Very good.

Now, does our next panel want to come up? I already introduced
all of you. If you could raise your right hand, will you please stand
to be sworn.

[Whereupon, the witnesses were duly sworn.]

Senator Klobuchar. Very good. Thank you, everyone.

You all have interesting and good backgrounds. I think we’ll
start. We’d love to have you introduce the people who are here with
you today. Now that the Six’s have cleared out, there are some
empty seats behind you. Everyone that doesn’t have a seat is wel-
come to move up. Here we go. Let’s get Ms. Marmolejo’s family. I
just love saying your name, as you can tell. There we go. OK. Very
good.

Ms. Marmolejo, do you want to begin? Let’s get everyone seated
here. There we go. Do you want to begin and introduce your fam-
ily?

STATEMENT OF MARINA GARCIA MARMOLEJO, NOMINEE TO

BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF

TEXAS

Ms. Marmolejo. Yes. Thank you, Senator. First of all, I would
like to say thank you for the opportunity and the privilege of being
here today and for your consideration of my nomination.

I would like to begin by thanking our President, Barack Obama,
for this nomination and this incredible honor. I would like to thank
Congressman Henry Cuellar and his staff for their unconditional
and unwavering support. Clearly, I would not be here today if it
wasn’t for their support and that of the Texas Democratic delega-
tion.

I would like to convey a similar sentiment of gratitude to both
of my Texas Senators who are here today. They, too, have given me
their bipartisan support from the very beginning of this process
and I am very grateful for them. I also thank them for such a kind
and generous introduction today.

And now if I may, I’m pleased and honored to introduced all of
my family members. I’ve got my husband here today, Wesley Boyd,
and our two children, Natalia, who is 10 years old, and Nicolas,
who is 8 years old. I am blessed to have both of my parents here,
Abraham and Marina Garcia, my aunts Drs. Martha and Gloria
Marmolejo, my sister Sarah Santos, her husband Frank, and my
two-year-old nephew Frankie, my sister Maria Aurora Garcia, her
husband Mark McPherson, and their two children, Ava and Levi.
And I believe Levi’s out in the crying room because he’s only 6
months old. My brother Abraham and his wife Melissa could not
join us today, but I know that they’re watching the webcast and
so I salute them today.

I also have my cousin Anna Garcia with me here today, and two
dear friends, Brigadier General Dixie Morrow, who was confirmed
during the 111th Congress, and my friend Janice Ayala.

And finally, I would be remiss if I didn’t thank some of my
friends at home who are watching this webcast who have been in-
credibly supportive throughout this entire process: Michael
McCromm, Ron Adder, Marylou Castillo, Don DeGabriel, Doris
Morrow; and my friends at Thompson & Knight: Debbie Alsip, Jim

866

Kowser, John Martin, Richard Roper, and others. Thank you so
much.

Senator Klobuchar. Well, thank you. And we welcome your ex-
tended family here.

Ms. Marmolejo. Thank you, Senator.

Senator Klobuchar. So we’re very glad that you’re all here.

Mr. Green.

[The biographical information follows.]

867

UNITED STATES SENATE
COMMITTEE ON THE JUDI CI.ARY

QUESTIONNAIRE FOR JUDICIAL NOMINEES

PUBLIC

1 . Name : State full name (include any fomier names used).

Marina Garcia Marmolejo (former name: Marina Lerma)

2. Position : State the position for which you have been nominated.

United States District Judge for the Southern District of Texas

3. Address : list current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.

Office: Reid Davis LLP

4301 Westbank Drive
Building B, Suite 230
Austin, Texas 78746
(512) 647-6100

4. Birthplace : State year and place of birth.

1971; Nuevo Laredo, Tamaulipas, Mexico

5. Education : List in reverse chronological order each college, law school, or any other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.

1993 - 1996, St. Mary’s University School of Law; J.D., 1996

1995 - 1996, St, Mary’s University Graduate School; M.A., 1996

1989- 1992, University of the Incarnate Word; B.A., 1992

6. Employment Record : List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation
from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.

868

2009 (November) - Present
Reid Davis LLP
4301 Westbank Drive
Building B, Suite 230
Austin, Texas 78746
Partner

2009

Diamond McCarthy LLP
6504 Bridgeport Parkway, Suite 400
Austin, Texas 78230
Of Counsel (July 2009)

Partner (August - November 2009)

2007 - 2009

Thompson & Knight LLP
4040 Broadway, Suite 61 5
San Antonio, Texas 78209
Of Counsel

1999-2007

United States Attorney’s Office
Southern District of Texas
1 1 00 Matamoros, 2"' 1 Floor
Laredo, Texas 78042
Assistant United States Attorney

1999

Law Offices of Jesus M. Dominguez
902 Market Street
Laredo, Texas 78040
Affiliated Attorney

1998 1999

Federal Public Defender’s Office
Southern District of Texas
1501 Matamoros
Laredo, Texas 78042
Assistant Federal Public Defender

1996- 1998

Federal Public Defender’s Office
Western District of Texas
2205 Veterans Blvd, Suite A2
Del Rio, Texas 78840
Assistant Federal Public Defender

2

1993- 1996

St. Mary’s University School of Law

One Camino Santa Maria

San Antonio, Texas 78228

Research Assistant to Professor Raul M. Sanchez

1993

United Independent School District
201 Lindenwood
Laredo, Texas 78045
Substitute Teacher

7. Military Service and Draft Status . Identify any service in the U-S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.

I have not served in the military. I have not registered for selective service.

8. Honors and Awards : List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.

Outstanding Service, Immigration and Customs Enforcement (2007)

Outstanding Service, Drug Enforcement Administration (2006)

Outstanding Service, federal Bureau of Investigation (2003,2006)

Outstanding Service, Office of the Inspector General, Dep’t of Homeland Security (2005)
Michael T. Shelby U.S. Attorney's Sisyphus Award (2002, 2004, 2005)

Director's Award for Superior Performance as an AUSA (2002)

Service Recognition, Nuevo Laredo, Tamaulipas Rotary Club (2002)

Tejano Achievers Award, Laredo LULAC Council (2000)

Associate Editor, St. Mary's Law Journal (1994 - 1996)

Member, Phi Delta Phi Honor Society (1996)

Member, Alpha Chi Honor Society (1992)

Member, Alpha Lambda Delta Honor Society (1990)

9. Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you arc or have been a member, and give the
titles and dates of any offices which you have held in such groups.

Association of Defense Counsel, Inc.

College of The State Bar of Texas
Laredo Women’s Bar Association
National Association of Criminal Defense Lawyers
National Association of Assistant United States Attorneys

870

Texas State Bar Association

Young Lawyers’ Association of Laredo, Texas

10 Bar and Court Admission :

a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.

Texas, 1996

There has been no lapse in membership.

b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
in membership. Give the same information for administrative bodies that require
special admission to practice.

United States Court of Appeals for the Fifth Circuit, 1996
United States District Court for the Southern District of Texas, 1999
United States District Court for the Western District of Texas, 1 996
Supreme Court of Texas, 1997

My bar membership in the United States District Court for the Southern District
of Texas lapsed for a seven-month period from July 2008 to February 2009
because of paperwork issues during my move from Laredo to San Antonio, Texas.
There has been no other lapse in membership.

11. Memberships :

a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 10 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership or participation, and indicate any office you held.
Include clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.

Alexander High School Law Magnet Program Advisory Board (2005)

Literacy Volunteers of America ( 1 993)

b. The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion, or national
origin. Indicate whether any of these organizations listed in response to 1 la above
currently discriminate or formerly discriminated on the basis of race, sex, religion
or national origin either through formal membership requirements or the practical

4

871

implementation of membership policies. If so, describe any action you have taket
to change these policies and practices.

I am not a member of any organization that currently discriminates or formerly
discriminated on the basis of race, sex, religion or national origin either through
formal membership requirements or the practical implementation of membership
policies.

12. Published Writings and Puhlie Statements :

a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Supply four (4) copies of all published
material to the Committee.

As a student at the University of the Incarnate Word in San Antonio, Texas, I
wrote for the student newspaper. The Logos. I have list and supplied copies of
the articles of which 1 have retained a copy:

Bookstore Renovations Promise Belter Service, Attractive Decor, Vol. 92 No. 5
THE LOGOS, Dec. 6, 1991.

Ballet School Alumni Join Students to Celebrate Timeless Children 's Tale , Vol.

92 No. 5 THE LOGOS, Dec. 6 1991 .

Nutcracker 's Storyline Composed by Russian Commissioned to Create Ballet
Based on Play, Vol. 92, No. 5 THE LOGOS, Dec. 6 1 991

Golden Harvest Scheduled for Nov. 9 Volunteers Set Goal at Six Tom of Food.
Vol. 92, No. 4 THE LOGOS, Oct. 31, 1991.

Although I do not remember and have been unable to identify any other published
material I have written or edited, there may be others that I been unable to
remember or identify.

b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, give the
name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.

Critique, Review of the U. S. Department of Slate 's Country Reports on Human
Rights Practices 1994, Lawyers Committee for Human Rights. I assisted
Professor Raul Sanchez with research and editing of a critique of U.S.

5

872

Department’s Country Reports on Human Rights Practices as they pertained to
Mexico ini 994. Copy supplied.

Although I do not remember and have been unable to identify any other reports,
memoranda, or policy statements that I prepared or to which I contributed, there
may be others that I been unable to remember or identify.

c. Supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.

None that T recall or have been able to identify.

d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by you, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk. If you do not have a copy of the speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.
If you did not speak from a prepared text, furnish a copy of any outline or notes
from which you spoke.

“Immigration Consequences of Criminal Convictions,” Presented at the State Bar
of Texas 35 lh Annual Advanced Criminal Law Course, July 20-23, 2009, Dallas,
Texas. Published article and PowerPoint presentation supplied.

“Litigation Fundamentals: Closing Arguments,” Telephonic CLE presentation on
behalf of the ABA, July 16, 2009, San Antonio, Texas. Co-presented with
Attorneys Lamont Jefferson and Lori Massey. I have no notes, transcript, or
recording.

“The Thin Green Line: When is an Environmental Violation Considered a
Crime?” Co-presented with Attorney Scott D. Deatherage to BNSF Railway in
2008, 2650 Lou Menk Drive, Fort Worth, Texas 76131 . PowerPoint presentation
supplied .

Although 1 do not remember and have been unable to identify any other speeches
or talks I have delivered, there may be others that I been unable to remember or
identify.

e. List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.

6

873

I have searched my files and publicly-available Internet databases to identify all
interviews I have given, but there may be others I have been unable to recall or
identify. Clips supplied for all newspaper interviews.

Univision “Aqui y Ahora.” The television interview focused on corruption issues
along the U.S./Mexico border and specifically documented a case I had
prosecuted involving a Border Patrol Agent named Juan Alfredo Alvarez. The
interview was conducted in Spanish and was televised in 2008. I have no
transcript or recording.

“Accused ex-broker free in lieu of bond,” San Antonio Express News, Sept, 27,
2008.

“Plea deal reached in sex trafficking case for S.A. man,” San ANTONIO Express
News, Feb. 26, 2008.

“Truck Driver Goes on Trial for Alleged Smuggling,” LAREDO MORNING TIMES,
May 11,2000.

Jacque Crouse, “Western District issues its first video sentences,” SAN Antonio
Express News, February 27, 1998, at 2B.

“School Bars Boy Accused of Killing,” AUSTIN AMERICAN-STATESMAN, Nov. 1 8,
1995.

13. Judicial Office : State (chronologically ) any judicial offices you have held, including
positions as an administrative law judge, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.

I have not held judicial office.

a. Approximately how many cases have you presided over that have gone to verdict
or judgment?

i. Of these, approximately what percent were:

jury trials:
bench trials:

%

% [total 100%]

civil proceedings:
criminal proceedings:

%

% [total 100%]

b. Provide citations for all opinions you have written, including concurrences and
dissents.

c. For each of the 10 most significant cases over which you presided, provide: (1) a

7

874

capsule summary of the nature the case; (2) the outcome of the case; (3) the name
and contact information for counsel who had a significant role in the trial of the
case; and (3) the citation of the case (if reported) or the docket number and a copy
of the opinion or judgment (if not reported).

d. For each of the 1 0 most significant opinions you have written, provide: (1)
citations for those decisions that were published; (2) a copy of those decisions that
were not published; and (3) the names and contact information for the attorneys
who played a significant role in the case.

e. Provide a list of all cases in which certiorari was requested or granted.

f. Provide a brief summary of and citations for all of your opinions where your
decisions were reversed by a reviewing court or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings. If
any of the opinions listed were not officially reported, provide copies of the
opinions.

g. Provide a description of the number and percentage of your decisions in which
you issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored.

h. Provide citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, provide copies of the opinions.

i. Provide citations to all cases in which you sat by designation on a federal court of
appeals, including a brief summary of any opinions you authored, whether
majority, dissenting, or concurring, and any dissenting opinions you joined.

14. Kecusal: If you are or have been a judge, identity the basis by which you have assessed
the necessity or propriety of recusal (If your court employs an "automatic" recusal system
by which you may be recused without your knowledge, please include a general
description of that system.) Provide a list of any cases, motions or matters that have
come before you in which a litigant or party has requested that you recuse yourself due to
an asserted conflict of interest or in which you have recused yourself sua sponte. Identify
each such case, and for each provide the following information:

I have not served as a judge.

a. whether your recusal was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any other person or interested party; or if you
recused yourself sua sponte;

b. a brief description of the asserted conflict of interest or other ground for recusal;

c. the procedure you followed in determining whether or not to recuse yourself;

8

875

d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any
other ground for recusal.

15. Public Office. Political Activities and Affiliations :

a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, state chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.

1 have not held public office. I have had no unsuccessful candidacies for elective
office or unsuccessful nominations for appointed office.

b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election committee. If you have ever
held a position or played a role in a political campaign, identify the particulars of
the campaign, including the candidate, dates of the campaign, your title and
responsibilities.

I have never held a paid position with any political campaign organization or
political entity.

I have occasionally allowed my name to be used on public lists of supporters. 1
recall doing so for Karen Sage, candidate for the 299 th District Court of Texas. I
may have done so for other candidates ] cannot specifically recall or identify.

16. Legal Career: Answer each part separately.

a. Describe chronologically your law practice and legal experience after graduation
from law school including:

i. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;

1 did not serve as a clerk to a judge.

ii. whether you practiced alone, and if so, the addresses and dates;

I have not practiced law alone.

iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.

9

876

1996-1998

Federal Public Defender’s Office
Western District of Texas
2205 Veterans Blvd, Suite A2
Del Rio, Texas 78840
Assistant Federal Public Defender

1998 - 1999

Federal Public Defender’s Office
Southern District of Texas
1501 Matamoros
Laredo, Texas 78042
Assistant Federal Public Defender

1999

Law Offices of Jesus M. Dominguez
902 Market Street
Laredo, Texas 78040
Affiliated Attorney

1999-2007

United States Attorney’s Office
Southern District of Texas
1 100 Matamoros, 2'“' Floor
Laredo, Texas 78042
Assistant United States Attorney

2007-2009

Thompson & Knight LLP
4040 Broadway, Suite 615
San Antonio, Texas 78209
Of Counsel

2009

Diamond McCarthy LLP
6504 Bridgepoint Parkway, Suite 400
Austin, Texas 78230
Of Counsel (July 2009)

Partner (August - November 2009)

2009 (November) - Present
Reid Davis LLP
4301 Westbank Drive
Building B, Suite 230
Austin, Texas 78746
Partner

10

877

iv. whether you served as a mediator or arbitrator in alternative dispute

resolution proceedings and, if so, a description of the 10 most significant
matters with which you were involved in that capacity.

[ have not served as a mediator or arbitrator in alternative dispute
resolution proceedings.

I have not served as a mediator or arbitrator in any alternative dispute
resolution proceedings.

b. Describe:

i. the general character of your law practice and indicate by date when its
character has changed over the years.

I have dedicated the vast majority of my legal career to public service and
have successfully practiced on both sides of the bar. I began my legal
career as an Assistant Federal Public Defender and then spent eight years
as an Assistant United States Attorney. Since 2007, 1 have gained
experience in civil and commercial litigation as an attorney in private
practice.

ii. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.

As an Assistant Federal Public Defender (1996 - 1999), I represented
indigent clients who were charged with federal crimes, both felonies and
misdemeanors. As an Assistant United States Attorney (1999 - 2007), I
represented the government in federal criminal investigations and
prosecutions. In private practice (2007 - present), I have represented a
broad range of clients including corporate entities, financial institutions,
business owners, and individuals who have sought guidance on criminal,
civil, and immigration matters.

c. Describe the percentage of your practice that has been in liligation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.

I estimate that 98% of my criminal and civil practice involved litigation. As an
Assistant Federal Public Defender and Assistant United States Attorney, I had
daily court appearances, motions hearings, and trials. Since entering private
practice in 2007, 1 have appeared in court occasionally.

i. Indicate the percentage of your practice in:

1 . federal courts: 95%

2. state courts of record: 5%

3. other courts:

4. administrative agencies:

11

878

ii. Indicate the percentage of your practice in:

1. civil proceedings: 20%

2. criminal proceedings: 80%

d. State the number of cases in courts of record, including cases before
administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.

I have tried over 30 jury trials to verdict (approximately half as sole counsel
and half as associate counsel).

i. What percentage of these trials were:

1. jury: 98%

2. non-jury; 2%

e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any
oral argument transcripts before the Supreme Court in connection with your
practice.

1 have not practiced before the Supreme Court of the United States.

17. Litigation : Describe the ten (10) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give a capsule summary of
the substance of each case. Iderfify the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also slate as to each case:

a. the date of representation;

b. the name of the court and the name of the judge or judges before whom the case
was litigated; and

c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.

1. United Stales v. Rubio, 321 F.3d 517 (S'* Cir, 2003). July - August 2000. U.S. District
Judge George P. Kazcn. Case affirmed on appeal. I was one of three AUSAs co-assigned
to prosecute this Hobbs Act public corruption investigation and prosecution of officials of
and others connected to the District Attorney’s Office in Laredo, Texas. The Jury
returned verdicts of guilty against all five defendants (25 out of 27 charged counts)
following a five week trial.

12

879

My co-counsel were AUSAs Don DcGabrielle and Trey Martinez. Defense counsel
included Jose Luis Ramos (for Mr. Rubio Sr.}, 107 Garza, Rio Grande City, Texas
78482, Tel: (956) 487-3597; Luis Antonio Figueroa (for Mr. Rodriguez), 1319 Convent,
Laredo, Texas, Tel: (956) 724-2889; Salvador Tellez (for Mr. Mendoza), 1 102 Scott,
Laredo, Texas, Tel: (956) 722-0008; and John Convcry (for Mr. Rubio), 1005 South
Alamo Street, San Antonio, Texas 78210, Tel: (210) 738-9060.

2. United Stales v. Cisneros, 72 Fed. Appx. 161, 2003 WL 21954210 (5 l ” Cir. 2003).
December 2001. U.S. District Judge George P. Kazen. Case affirmed on appeal.

I was one of two AUSAs co-assigned to prosecute this case, which was part of a Hobbs
Act public corruption investigation and prosecution involving the District Attorney’s
Office in Laredo, Texas. Jury convicted Mr. Cisneros following a four-day trial. The
U.S. Court of Appeals for the Fifith Circuit provided further guidance on necessary
elements to sustain Hobbs Act conviction adding that depletion of victim’s assets was not
a requisite element of the crime.

My co-counsel was AUSA Dixie Morrow. Defense counsel was Oscar Pena Sr., 1720
Matamoros St., Laredo, Texas 78040, Tel: (956) 722-5167.

3. United States v. Dimas , 108 Fed. Appx. 927, 2004 WL 2029761 (5 lh Cir. 2004). May
2002. U.S. District Judge George P. Kazen. Case affirmed on appeal. I was one of two
AUSAs co-assigned to prosecute this case, which was part of a Hobbs Act public
corruption investigation and prosecution involving the District Attorney’s Office in
Laredo, Texas. The defendant had been employed as a criminal investigator at the
District Attorney’s Office. He was convicted by a jury for his role in the conspiracy.

My co-counscl was AUSA Dixie Morrow. Defense counsel was Eduardo Jaime, 1800
Victoria St., Laredo, Texas 78040, Tel: (956) 725-9714.

4. United States v. Botello , 1 08 Fed. Appx. 979, 2004 WL 2095639 (5 lh Cir. 2004).
December 2002. U.S. District Judge George P. Kazen. I was one of two AUSAs co-
assigned to prosecute defendants for possession and distribution of 540 pounds of
marijuana. The case involved cooperating defendants and consensual tape recordings.
Following a three-day trial, the jury returned guilty verdicts as to both defendants on the
conspiracy charges. The case was affirmed on appeal.

My co-counsel was AUSA Noelle Dimarco. Defense counsel included Fernando
Sanchez (for Mr. Botello), 401 E. Hillside 2 nd floor, Laredo, Texas 78041, Tel: (956)
722-0707; and Oscar A. Vela, Jr. (for Mr. Vasquez), 1800 Victoria St.. Laredo, Texas
78040, Tel: (956) 725-9714.

5. United Slates v. Hernandez , 202 Fed. Appx. 708, WL 2930198 (5 l!l Cir. 2006).

August 2004. U.S. District Judge Keith P. Ellison. I was the sole prosecutor charging
this multi-Defendant case stemming from Organized Crime Drug Enforcement Task
Force (OCDETF) investigation of the Julian Ramirez drug trafficking organization. The
case involving drug and money seizures, cooperating defendants, taped conversations,

13

880

and controlled deliveries. The jury trial lasted seven days. One Defendant was granted a
Rule 29 by Judge Ellison during the trial. The other three defendants were found guilty
by the jury. All convictions have been affirmed on appeal.

Defense counsel included Luis Antonio Figueroa (for Mr. Hernandez), 1319 Convent,
Laredo, Texas, Tel: (956) 724-2889; David Almaraz (for Mr. Wildenborg), 1 802 Houston
St., Laredo, Texas, Tel: (956) 727-3828; Alonzo Ramos (for Mr. Thomas), 1 1 02 Scott
Suite 5B, Laredo, Texas, Tel: (956) 712-1259; and Javier Montemayor (for Mr. Morales)
1814 Victoria, Laredo, Texas, Tel: (956) 726-88 II.

6. United States v. Pena Hinojosa, No. 06-CR- 123-2 (S.D. Tex.). April 2006. U.S.
District Judge Donald Walter, sitting by designation. I was the sole prosecutor charging
this drug trafficking case, for conspiracy to distribute and possession of 140 pounds of
cocaine. The case was part of large-scale Organized Crime Drug Enforcement Task
Force (OCDETF) investigation. Following a four-day trial the jury found the primary
defendant guilty and his co-defendant not guilty.

Defense counsel were Salvador Tellez (for Mr. Pena Hinojosa), 1 1 02 Scott, Laredo,
Texas, Tel: (956) 722-0008; and Oscar O. Pena (for Mr. Saldana), 1720 Matamoros St.,
Laredo, Texas 78040, Tel: (956) 722-5167.

7. United States v. Ramirez-Olivas, No. 06-CR-123-4 (S.D. Tex.). April 2006. U.S.
District Judge George P. Kazen. I was the sole prosecutor charging this drug trafficking
case, for conspiracy to distribute and possession of 791 pounds of marijuana. Following
a four-day trial, the jury found the defendant guilty.

Defense counsel were Teresa Hunter and Amador Gutierrez, 101C Juarez, LareJ-, Texas,
Tel: (956) 722-8065.

8. United States v. Garcia, No. 05-CR-1659 (S.D. Tex.). May 2006. U.S, District Judge
George P. Kazen. I was the sole prosecutor charging this drug trafficking case, for
conspiracy to distribute and possession of more than 1,413 kilograms of marijuana. Law
enforcement considered the defendant the direct link to the source of narcotics supply in
Mexico. Following a fourt-day trial, the jury found the defendant guilty and Judge Kazen
sentenced him to 30 years imprisonment.

Defense counsel was J. Eduardo Pena, 1 102 Scott St., Laredo, Texas 78040, Tel: (956)
722-9854.

9. United States v. Obregon, No. 07-CR-452 (S.D. Tex.). August 2007. U.S. District
Judge George P. Kazen. I was associate counsel (as supervisory “second chair") in this
prosecution for conspiracy to kidnap, kidnapping, and use of a firearm during a crime of
violence. The case involved a confrontation at the primary defendant's residence that
resulted in the victim being assaulted, tied up, and eventually driven from the residence
into Nuevo Laredo, Tamaulipas Mexico, where the victim was shot in the face and torso
and left for dead by other co-conspirators. The victim survived, made his way back to the

14

881

United States and testified at the trial. Following a six-day trial, the defendants were
convicted on all counts.

My-counsel was AUSA Gracie Lindberg. Defense counsel were Robert Berg (for Mr.
Obregon), 3833 Alameda St., Corpus Christi, Texas 78205, Tel: (361) 814-0744;

Ruben Cabrera; Javier Montemayor (for Mr. Cabrera), 1814 Victoria, Laredo, Texas, Tel:
(956) 726-8811; and Oscar O Pena (for Mr. Cardenas), 1720 Matamoros St., Laredo,
Texas 78040, Tel: (956) 722-5167.

10. State of Texas v. Roberts (226 ,h District Court, San Antonio, Texas). December
2007. District Judge Sid Harle. 1 was co-defensc counsel to Ms. Roberts, who was
charged with helping her husband blackmail four of her former lovers. The couple was
charged with theft and accused of extortion of $155,000 from the married men that Ms.
Roberts had extramarital affairs with over a two-month period. After Mr. Roberts
learned of the affairs, he threatened the men that he would expose their infidelities in
court unless they agreed to pay him. Ms. Roberts was found guilty by a jury' on all counts
and sentenced to ten years probation.

Prosecutors were Assistant District Attorneys Tamara Strauch and Bill Pennington,

100 Dolorosa, San Antonio, Texas 78205, Tel: (210) 335-23 1 1 . My co-counsel were
Michael McCrum and Alan Brown.

18. Legal Activities : Describe the most significant legal activities you have pursued,

including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organization(s) for whom you performed lobbying activities and describe
the lobbying activities you performed on behalf of such client(s) or organizations(s).
(Note: As to any facts requested in this question, please omit any information protected
by the attorney-client privilege.)

My current work at Reid Davis LLP focuses on complex commercial cases. For
example, 1 am involved in the investigation and prosecution of civil RICO claims on
behalf of foreign sovereigns who have been impacted by the illegal smuggling of goods
by multi-national companies engaged in money laundering activities. We work closely
with U.S. Attorney’s Offices and government agents who are conducting parallel
criminal prosecutions. I am also involved in assisting a financial institution to investigate
large scale embezzlement schemes by employees, and to coordinate the civil suits against
the employees and the cooperation with law enforcement on the criminal prosecutions.

In 2007, 1 joined Thompson and Knight LLP as one of three core members of a newly
formed white collar defense group. Legal work focused primarily on complex federal
and state criminal defense matters, including numerous high-profile criminal cases,
public corruption matters, criminal tax fraud, health care fraud, securities fraud and
mortgage fraud. I also assisted companies with internal fraud investigations. In one
particular matter, I represented a national insurance company with an internal
administrative investigation of one of its employee involved in an elaborate

15

882

embezzlement scheme. Representation required coordinated efforts with the Texas
Department of Insurance. In another significant matter, I represented a major company
involved in the marketing and distribution of petroleum in a claim for liquidated damages
for removal of merchandise from a foreign trade zone without CBP authorization. The
appeal process and extensive negotiations with CBP Fines, Penalties, and Forfeitures
resulted in the fine being mitigated by 90%.

During my eight year tenure as an Assistant United States Attorney (1999-2007), I was
responsible for the prosecution of hundreds of reactive and long-term investigations
involving public corruption, illegal narcotics, money laundering, firearms, human
trafficking, and in-bond diversion/merchandise smuggling. I was assigned to the
Organized Crime Drug Enforcement Task Force (OCDETF) where I focused on the
prosecution of complex narcotics and money laundering investigations. 1 was tasked
with daily multi-agency and multi-jurisdictional coordination efforts in conducting
investigations aimed at dismantling major drug organizations. I was the lead prosecutor
in numerous Title III electronic surveillance and grand jury investigations and initiated
the first Title III electronic surveillance investigation for Immigration and Customs
Enforcement (ICE) in the Southern District of Texas. More than 30 Defendants were
convicted as a result of said investigation which resulted in multi-ton seizures of
narcotics and other goods derived from illicit sources. I have also served as a member of
the office’s Indictment Review Committee which screens and approves all cases before
they are presented to the grand jury. During my tenure as an AUSA, I was consistently
recruited by the Department of Justice’s OPDAT (Office of Overseas Prosecutorial
Development, Assistance and Training) program to teach trial advocacy skills to foreign
prosecutors and agents in Colombia and the Dominican Republic.

In 1996, 1 was hired out of law school to join the Federal Public Defender’s Office in the
Western District of Texas, which is one of the highest volume districts in the countries.
During my three years as an Assistant Federal Public Defender in both the Western and
Southern Districts of Texas, 1 was responsible for the representation of hundreds of
indigent criminal defendants charged with federal criminal violations. I handled every
stage of the case from meeting with clients and their families, to researching issues,
drafting and arguing pre-trial motions, and appearing in court for motions hearings,
arraignments, trials, guilty pleas and sentencing proceedings.

I have not performed any lobbying activities on behalf of any client or organization.

19. Teaching : What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.

I have been recruited on numerous occasions by the Department of Justice Office of
Overseas Prosecutorial Development Assistance and Training to teach trial advocacy to
prosecutors and agents (both state and federal).

16

883

Albuquerque, New Mexico 2001 and 2002

Bucaramanga, Colombia, 2005

Santo Domingo Dominican Republic, 2006 and 2007

20. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest.

I am entitled to conditional future benefits from Diamond McCarthy LLP, my former law
firm, based on ten percent of any recovery (net of expenses) in a probate case.

If confirmed, I would sever my partnership with Reid Davis LLP, my current firm.
Pursuant to my employment agreement, 1 would be entitled to conditional future benefits
for work performed based on recovery in matters on which I have worked while at the
firm.

21. Outside Commitments During Court Service : Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.

I have no plans, commitments or agreements to pursue outside employment, with or
without compensation, during my service with the court.

22. Sources of Income : List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding $500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1 978, may be substituted here).

See attached Financial Disclosure Report.

23. Statement of Net Worth : Please complete the attached financial net worth statement in
detail (add schedules as called for).

See Attached Net Worth Statement

24. Potential Conflicts of Interest :

a. Identify the family members or other persons, parties, categories of litigation, and
financial arrangements that are likely to present potential conflicts-of-interest
when you first assume the position to which you have been nominated. Explain
how you would address any such conflict if it were to arise.

17

884

My sister is Corporate Counsel for BBVA Compass (formally known as the
Laredo National Bank) in Laredo, Texas. If confirmed, I would recuse myself in
any matter involving said entity.

It is possible that criminal cases in which I had involvement as an Assistant
United States Attorney may come before the Court. I expect that there would be
relatively few such cases given that I left the United States Attorney’s Office in
2007, but I would recuse myself on any matter in which I had involvement during
my time as a federal prosecutor.

b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.

If confirmed as a District Judge, I would follow the recusal statutes and the Code
of Conduct for United States Judges, as well as any other guidance from the
courts, in addressing any matter the could involve actual or apparent conflicts of
interests. As needed, I would consult with colleagues and/or seek formal
guidance from ethics officials at the Administrative Office of U.S. Courts.

25. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar

Association’s Code of Professional Responsibility calls for “every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving the disadvantaged.” Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.

During the first eleven years of my legal career, 1 worked for the government and was not
permitted to work on any pro bono matters due to conflict of interest. During my three-
year tenure as an Assistant Federal Public Defender, I represented indigent clients
charged with crimes.

Since joining the private sector in 2007, 1 have worked on several pro bono matters
including the following cases:

1 . I represented a client charged with criminal violations in two different jurisdictions
(Bexar and Kendall counties). Due to her extremely poor financial condition, and the
fact that she would not otherwise receive adequate representation, 1 assisted Attorney
Michael McCrum in representing Ms. Lalley on a pro bono basis. A significant
amount of time was devoted in attending court hearings in each county, reviewing
evidence, meeting with the client, and visiting the respective district attorney’s
offices. The case took more than a year to resolve.

2. I represented a client charged with criminal violations in Bexar County. Due to the
nature of the allegations and the heightened publicity surrounding the case, my client
was left without a source of income and the ability to defend herself. As such, we
agreed to represent her on a pro bono basis. The case took many months of
preparation and involved extensive review of documents, research, drafting motions,

18

885

meetings with witnesses and client, and court hearings. The trial in the matter. Stale
v. Roberts, lasted a week in December 2007.

3. I represented an adult woman and her two minor children who were victimized by the
woman’s ex-husband and were in need of attorney representation. My client was
unemployed and did not have the ability to hire counsel. I served as a liaison between
my client and the District Attorney’s Office. I spent a significant amount of time
meeting with this client and conveying information on her behalf to the District
Attorney’s Office.

In March 2010, 1 volunteered to serve as ajudge for the Hispanic National Bar
Association’s (HNBA) National Moot Court competition which took place in San Diego,
California and lasted several days. During my tenure at Thompson and Knight LLP, 1
also volunteered my time to train young associates and participated as ajudge during the
firm’s moot court training program for associates.

26. Selection Process :

a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
the interviews in which you participated). Is there a selection commission in your
jurisdiction to recommend candidates for nomination to the federal courts? If so,
please include that process in your description, as well as whether the commission
recommended your nomination. List the dates of all interviews or
communications you had with the White House staff or the Justice Department
regarding this nomination. Do not include any contacts with Federal Bureau of
Investigation personnel concerning your nomination.

1 submitted an application to U.S. Senator Kay Bailey Hutchison in November
2008. In January 2009, 1 also submitted letters of interest to Sen. Hutchison and
to Senator John Comyn, as well as to senior members of the Texas Democratic
congressional delegation.

In January 2009, 1 interviewed with U.S. Congressman Henry Cuellar in
Washington, D.C. In October 2009, 1 was recommended for nomination to the
President by the Texas Democratic Delegation.

In November 2009, 1 was interviewed by the Senators’ Judicial Screening
Committee in San Antonio, Texas. In January 2010, 1 was interviewed by
Senators Hutchison and Comyn in Washington, D.C.

In December 2009, 1 submitted an application and request for endorsement to the
Hispanic National Bar Association (HNBA). The HNBA endorsed my candidacy
in March 2010.

19

886

Since March 2010, 1 have been in contact with pre-nomination officials at the
Department of Justice, I interviewed with attorneys from the White House
Counsel’s Office and from the Department of Justice in Washington, D.C.,on
May 19, 2010. The President submitted my nomination to the Senate on July 28,
2010 .

b. Has anyone involved in the process of selecting you as a judicial nominee

discussed with you any currently pending or specific case, legal issue or question
in a manner that could reasonably be interpreted as seeking any express or
implied assurances concerning your position on such case, issue, or question? If
so, explain fully.

No.

20

887

AO 10
Rev. J/2008

FINANCIAL DISCLOSURE REPORT
NOMINATION FILING

Report Requited by the £ihia
ft» G bvcnmev Act of 1978

(SUSC.ifp.SS/OMW

L POSITIONS. MJ l awa h aj

| | NONE (No reportable positions.)

rosmoN

NAME OF OROANIZATfON/ENTTrY

1, Of Counsd (resigwul pmjtion July 2009)

Thoccfwon & Ksight LLP

2. Paarncr {rwlgottlpoiitkm NcrrenAer 2009)

Daawtd McCarthy LLP

3. Partner

Ketd Omit LLP

4.

5.

H. AGREEMENTS. wi y/u^ i»w ■

j 1 NONE (Wo reportable agreements.)

DATE PARIIESAND TERMS

1.2009

TVrcnpaoo & Kwgjir LLP Rctketnd plan with Sinner Uw rrmy co control

2.2009

Dimand McCarthy LLP Rcthrxncfi pica aii farcer law firm i nocacUcA; FK«i jwrymty ayecincnt contingency f
ce cates thrkgil service* freviously rendered

3. 2009-2010

Reid Dam LLP- Fixed pecentxge agreement an oaatiogeacy fee cues ftr legal tervice* laxfenl

888

FINANCIAL DISCLOSURE REPORT

N«we of btrtom Repotting

Qua of R-epori

Page 2 of 8

Garda Marm&lejo, Mariaa

07/2SCOIO

ILL NON-INVESTMENT INCOMK. (Ttepvning *nd y o wr . tm pf*. l%24o/JBKgt oMr m edn*»J

A. Filer's Non-Investment Income

f | NONB (No reportable nen-investmeni income.)

DATE SOURCE AND TYPE INCOME

(yours, nrt spouse's)

1.2003

Thooapsai A Knight LLP— previous law firm salary

5220,000.00

2.2009

Thompson A Knighi LLP-pevina law fins salary

1220,000.00

3.2005

Diamond McCarthy LUP-jaevkatt law firm salary

1220,000.00

4.2009

Rod Dbyu LLP-cunerd kwGrro saiiry

S150.000.00

5.2009

Read Davi LLP-amou law firm boom

S 15,000.00

(S. 2010

Bold Davis LLP -current law firm nlasy

1150,000.00

7. 2010

R ad Davis LLP -current law firm bond

S15.000.00

8.

B. S pome's Non-Investment Income - •

{DoiLramm a mifjvbrdaJtwjtftrko mmi A)

[/~] NONE (No reportable non-investment income.)

DMA

).

2.

3.

4.

IV. REIMBURSEMENTS

fhchula thue to tpaiat and tkjmnk M MUt-ryy 25-27 n/fUbtf kunctkmtj

[ 1 NONE (No reportable reimbursements.)

SOURCE PATES LOCATION

PURPOSE

889

V. GIFTS- (TmdmJtf tM irptmir*! ettMoC ** ^ J*J1 t/JOb* ku*m«l*aj

□ NONE (No reportable, gifts-)

SOURCE DESCRIPTION VALUE

l. Exempt
1 .

890

FINANCIAL DISCLOSURE REPORT

Hear trf Proa StejterttBj

DMofRipMt

Page 5 of 8

Garcii Morfaj

07/28/1010

VII. INVESTMENTS and TRUSTS 4 - , v,

□ NONE (No reportable income, assets, or transactions ,)

JMi •iJOmt hmokaj

I. Rental Property, Laredo, IX 2005, S320,00fll

H

Refit

N

R

Exempt

1. Tejuu Tcmintiw Fund cAnattiumi plan f®

i-tifytwn

None

K.

T

■

■

3. Dodge & Odk Sack

C

DtYkknd

i

T

■

4. Capital btcom Bkir CL A

A

Dividend

I

T

5. Capita! World Growth A tooaa» FD hoc CL
A

A

Dividend

T

_

6. Fandwncntal INVS INC CL A

A

Drvkkad

T

■

■

7. New World Final CL A NEWFX

A

Dividend

J

T

8. AF Growth Fund Axner. A

C

Dlvidmd

J

T

9. Vmguozd Value twin Signal

A

Divkknd

J

T

■

10. Vanguard 5W latex Signal

A

Dividend

T

■

11. T.Rovw Prica Blue Qup Growth

A

Dividend

I

T

12. JP Morgan Mid C>p Value!

A

Divkfcad

S

T

lJ, Vanguard Mid Cap hwkm

A

DWdend

i

T

14. T. Rdwo Prion Mid-Cop Growth

A

Dividend

J

T

IS. Vanguard Explorer

A

Divkfcnd

J

■a

16. William RUir Ideraatkmal Growth 1

A

Dividend

T

17. AF FudamcniaJ lev. A

H

Dividend

'

T

1. hxnaoGds Codbc

A-dl.Wcrta*

B-JUJ01 -EL500

C-OJOI-iLOOQ

D-tUOl *15,000

(1m OJauuM St tod tH)

F-IW.WU -TiWDCC

G -UOXCO) -li^XUSO

hi -ji.oayMi -tii.co.CKj

K3 -Uma tea *5,001.0X1

LWueOaiM

J-llI.cnu erics

K-ili, uei-l 340 l»

t -moo i -iioonao

M-eioonoj-nsaae

fSecCatamuCj udlU)

N-suaeoi-ttayw
W-nvxmooi -moeevooo

o-sJcoact -JXuaLxa

Pi -sinawn) - uoaojin

N -**w 4oa 150.COUWI

P3 -UJDQJOI • Oi. 00.1X0

X VtUMdnl Coda

Q-A«»»»a

R-Ct* C*-aJTX*fc<W)

S-MODll

T-CMSUufaa

(SwCofcraCJ)

0 -Sock Vito

V-OS*T

891

FINANCIAL DISCLOSURE REPORT

NjoiOffmai :iajwrtc*

IkktfRifat

Page 6 of 8

Garda Marfe*

07/78/2010

VII* INVESTMENTS nod TRUSTS -» i— — i*t ~ — 1 w n j> * r.t

[ 1 NONE (No reportable income, assets, or transactions.)

A.

Dcaoejbtom at Amm
{iochriioj trwt ftaactx)

a

3rwrg» *»*»(>
(spotting period

a

i Ctrtt wkr tl Ctt) d

naporitca period

Tudk

D.

m* djriag porting period

Pteo-ffi-iJacAliM

rasrrfJ fi»vn jwirm /fa-lmim.

<D

ca

div,nxJ.

Offal)

(1)

m

0>

ICtaptiOB}

m

0)

Value

CCLkrl

U-P)

w

Gain
Code 1
(A-*Q

<5)

ktotityof

(ujrarikr
(if private
tfiiTiim)

Code I
(A-J0

Cods 2

Mcd«d

Oriel
(O-W) !

ifcxrii-

ttOf

18. Axtiun Mid Cap Value Find

C

Divkfesd

1

T

19. Fidelity Small Cap Stack

B

Wvkfcnd

J

T

20. AF Finnpucllk. Growth A

B

Dividend

i

T

21. FIODjvavigedhtaaitiaial

B

Dividend

1

T

22.

1 . Ibkcu <hto Cocbc

2. VtheCcda
ttoCoS*na*CI««H>t)

3. VJ*b Mcdud Caict
(S* Cabman)

A-HdOMcrkai

F— tJOJHl -1KJH.CCD
J-JlipCOa-kM

h -Qsooa i-uoaao

N .fU nmnfi l . pnyyi)Wi

Q-Annod

B-tlflOl-ttW
□ Hiocjoi -i i.WQflw
K-H3flOJ.WO.aw
O-iUOflOi.tlflOQflOO

C-HJOl-tJ.KD
HI -JI.Wp.BOI -S1DWW0
L-t5QflO! - 1)00000
PI liflOOflONtSflMAX)
W - Moo <ma SSaflWflDO

D-UflOJ-tllOW
m lino Iiiii tt.WW.000
M-i»0flfl0l- 030.000
n ujaowi ■uunofloo

E-SlJflQi -SJO.ow

D-BockVahm

» «Co« Ckd &*» 0»VJ

rcwiHuu

892

FINANCIAL DISCLOSURE REPORT

Na«* erf r«rws SUpaecjE*

Dn of Ripoat

Page 7 of 8

Cerda Marrnalefo, Marfa*

07/28/2010

VOL ADDITIONAL INFORMATION OR EXPLANATIONS.

FINANCIAL DISCLOSURE REPORT

Na»acafref««a.Pqwftiat

DakofRipcfl '

Page 8 of 8

Garcia Manooid*, Marina

crmuim

IX. CERTIFICATION.

I certify that *H hrfonaadim gives above (fcdndfn* bferwiinu pntnitSn j to njf t^onee aad mfct/rr ar d tptMkat cb&rfrea, ifixj) k
■omrrie, true, nd conplete to tie bt* at *j k*owMr asd bekrf. tad 0*t k&rma*aa art (spark* wsa wfckfctfc] becun k w*A *f*abk rtatotsrr

prwUaot penalttba wia-dbckxaue.

NOTE; ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS RETORT MAY BE SUBJECT TO CIVIL
AND CRIMINAL SANCTIONS (J ILSXL app. 1 1M)

FILING INSTRUCTIONS

Mail signed original and 3 additional copes to:

Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-30 1

One Columbus Circle, N_E.

Washington, D.C. 20544

893

Marina Marmolejo

FINANCIAL STATEMENT
NET WORTH

Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank
accounts, real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts,
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate members of your
household.

ASSETS

LIABILITIES

Cash on hand and in banks

5

200

Notes payable to banks-sccured

36

500

U.S. Government securities — EE Bonds

4

200

Notes payable to banks-unsccurcd

17

000

Listed securities — see schedule

27

521

Notes payable to relatives

Unlisted securities

Notes payable to others

Accounts and notes receivable:

Accounts and bills due

47

000

Due from relatives and friends

25

000

Unpaid income tax

Due from others

Other unpaid income and interest

Doubtful

Real estate mortgages payable — see
schedule

487

000

Real estate owned — see schedule

WM

BUB

Chattel mortgages and other liens payable

Real estate mortgages receivable

Autos and other personal property

m

m

■a

Cash vBiue-life insurance

Other assets itemize:

Thrift Savings Plan Account

m

m

■

n

Net Worth

370

159

Total Assets

970

659

Total liabilities and net worth

970

HR

CONTINGENT LIABILITIES

GENERAL INFORMATION

As endorser, comaker or guar antor

Are any assets pledged? (Add schedule)

NO

On leases or contracts

Are you a defendant in any suits or legal
actions?

NO

Legal Claims

Have you ever taken bankruptcy?

NO

Provision for Federal Income Tax

Other special debt

894

FINANCIAL STATEMENT

NET WORTH SCHEDULES

Listed Securities

Vanguard Value Index Signal

S 274,72

Vanguard 500 Index Signal

425.14

T. Rowe Price Blue Chip Growth

561.64

JP Morgan Mid Cap Value f

153.85

Vanguard Mid Cap Index

457.15

T. Rowe Price Mid-Cap Growth

469.19

Vanguard Explorer

303.45

William Blair International Growth T

290.49

AF Fundamental Inv. A

4,986.1 1

AF Growth Fund Amer. A

4,967.47

Dodge & Cox Stock

4,702.84

Artisan Mid Cap Value Fund

3,853.90

Fidelity Small Cap Stock

1,445.10

AF Europacific Growth A

2,425.40

FID Diversified International

2,204.05

Total Listed Securities

27,521

Real Estate Owned

Personal residence J 380,000

Rental property 320,000

Total Real Estate Owned 700,000

Real Estate Mortgages Payable
Personal residence
Rental property

S 258,000

229.000

487.000

Total Real Estate Owned

895

AFFIDAVIT

I, MARINA GARCIA MARMOLEJO, do swear that the information
provided in this statement is, to the best of my knowledge, true
and accurate.

(NAME/)

C ,':ji uiiy

i/.nimonweaftWStale o f r^CL

'i'iis toegoing insirumenl was subscribed ard
m'li beicte me foi f-f 1h~ d ay cifiuiuZTT
" 70J0 s , ___ 7 ,

* ir ft d.t Cfl

896

MARINA GARCIA MARMOLEJO
6 14 CYPRESS TRAIL
SAN ANTONIO, TEXAS 78256

January 5, 201 1

The Honorable Patrick J. Leahy
Chairman

Committee on the Judiciary
United States Senate
Washington DC 205 10

Dear Mr. Chairman:

I have reviewed the Senate Questionnaire I previously filed in connection with my
nomination of July 28, 2010, to be United States District Judge for the Southern District of Texas.
Incorporating the additional information below, I certify that the information contained in that
document is, to the best of my knowledge, true and accurate.

Q. 3-Address;

Office address is the same. However, name of firm has changed from Reid Davis LLP to
Reid Collins Tsai LLP.

Q. 6- Employment Record:

Reid Collins Tsai LLP (September 20 1 0-prcsent)

Reid Davis LLP (November 2009- September 2010)

Q, 8- Honors and Awards: Additional Honors and Awards received
Super Lawyers, Texas Rising Stars (2011)

Hispanic Business: The 100 Influentials-Thought Leaders (2010)

I am also forwarding an updated Net Worth Statement and Financial Disclosure Report as
requested in the Questionnaire. I thank the Committee for its consideration of my nomination.

Sincerely,

cc: The Honorable Chuck Grassley

Ranking Member
Committee on the Judiciary
United States Senate, Washington DC 20510

897

FINANCIAL DISCLOSURE REPORT

NOMINATION FILING

Report Required by the Ethics
m Government Act of 1978
(5 U.S.C. app. §§ 101-111)

1. Ptrson Reporting (last name, first, middle burial)
Garcia Maramtcjo, Marina

2. Court or Orgaoization
U.S. District Court, Southern District of Terns

7. Chamber* or OfRre Addren

4301 Wadbank Drive, Suite B230
Austin, Texas 78746

Sa. Report Tjrpt (check appropriate type) 6-Rq

Nomination, Date 01/M/20I I

Q Initial Q Annual Q Final

5b. [ ' j Aroemfcd R epotl

a. Ou the hmiii of tbr Inform rnUoa cuotulued Id tbb Report ud any
roodlflcadoD» pertaining thereto, it lx, la my opinion, In compliance
wltli applicable law* and reuniaUoni.

IMPORTANT NOTES: The instructions accompanying this form must he followed. Complete ali ports,
cheeking the NONE box for each port where you have no reportable Information. Sign on last page.

I, POSITION'S. (Reporting Indtvhluat only; stepp. 9-1} of JUIng Instructions)

| \ NONE (No reportable positions.)

1. Tanner (resigned position September 2010) Reid Dovis LLP

2, Partner Reid Collins Tsai LLP

II. AGREEMENTS » (Reporting InJMJuoI only; u* pp. 14-16 of fillrjt insSractionsJ
H NONE (No reportable agreements.)

Thompson &. Knight LLP Retirement plan with former law firm, no control

Diamond McCarthy LLP Retirement plan with former law firm, no control; Fixed percentage agreement contingency f
cc coses for lego] services previously rendered

Reid Dovis LLP-Fixed percentage agreement od contingency fee eases for legal services previously rendered

Reid Collins Tsoi LLP-Fixed percentage agreement on contingency fee eases for legal services rendered

898

III. NON-INVESTMENT INCOME. (Reporting Individual and spouse; iit pp. 17-24 of filing Ins/rt&i&nL)
A. Filer’s Non-Investment Income
[ | NONE (No reportable non-investment income.)

DA XE

INCOME

(yours, not spouse's)

1, 200?

Thompson & Knight LLP— previous low firm salary

SI 27,284.00

2. 2009

Diamond McCarthy LLP-previous Jaw firm salary

546,740.00

3. 2009

Reid Davis LLP-previous law firm salary

$25,000.00

4. 2009

Reid Davis LLP-pirvjous low firm bonus

$15,000.00

5.2010

Reid Davis LLP -previous taw firm salary

SI 12.SOO.OO

6.2010

Retd Davis LLP-prcvious law firm bonus

SI 5,000.00

7.2010

Reid Collins Tsai LLP-current law firm salary

$25,000.00

8.

B. Spouse's Non-Investment Income - If you reer, married during. ny portion of Ihe reporting peer, complete this Section.

(Dollar omovnt not required trzrrpl for honoraria.)

[/] NONE (No reportable non-investment income.)

4.

TV. REIMBURSEMENTS — rruraporta/fon, lodging, food, entertainment.

(Includes those to spouse and dependent children: see pp. 2J-2J of filing Instructions.)

| | NONE (No reportable reimbursements.)

SOURCE DATES LOCATION

t. Exempt

899

FINANCIAL DISCLOSURE REPORT

Page 3 of 8

Nanisof Ftnoii Repartlng

Garda Marmolejoj Marloa '

Dali oT Report

01/05/201 1

4.

s.

FINANCIAL DISCLOSURE REPORT

Page4of8 - ... .. *

Name nf Prrtoa Rcpcrtlag

Garde i»*armuiej«f. Marfn?, -#•*,* s'-

Date of Report

,* 01/05/2011

V. GIFTS ■ ( Include those to spouse and drp t ndmt c hildren ; ifi pp. 2S-J1 of filing Itam/cfunsJ

| 1 N ONE (No reportable gifts.)

SOURCE DESCRIPTION VALUE

I. Exempt

VI. LIABILITIES. (Includes those of j paase and dependent children; see pp 12~}J of filing imtruttlontj
J ^ NONE (No reportable liabilities.)

CREDITOR

DESCRIPTION

VALUE CODE

1, Bunt or America

Credit Cart!

1C

2, American Express

Credit Card

i

3. Wells Fargo

Mortgage on Rental Property

M

4.

5.

900

FINANCIAL DISCLOSURE REPORT

Name of Person Rtpocttag.

Dale Of Report

Page 5 of 8 ■

Gar«.*,, Marmolejo, Marina • - ' ' •

O1/D5G0H

VII. INVESTMENTS and TRUSTS — Income, value, rransacrLyrir (Include th&tr of jpotat and dependent children; scrpp. 34-60 of filing InnrvtdjotaJ
[ ] NONE (No reportable income, assets, or transactions.)

Description of Assets
(tncjodaig truat assets)

Place "(X)' after eneh anti
exempt from prior disclosure

B.

Income tin ring
reporting period

c.

Gsoss veiuc el aid of
reporting period

D.

Traa SDCfioni during reporting period

0)

Amount
Code l
(A-H)

Type (tug,,

drv., rail,

orioL)

0)

Value

Code 2
(J-P)

m

Value

Method

Code 3
(Q-W)

(0

Typefe^.,

buy.ad),

redemption)

P)

Dale

Momb -
Day

0)

Value

Code 2

(J-P)

( 4 )

Glia

Code 1
(A-H>

(!)

Idendiy of
huyeriaella
(if private
iransrciicc)

1. Renta] Property, Laredo. TX 2005, $320,000

A

Rent

N

R

Exempt

2. Texas Guaranlocd Trillion Plan (prepaid/no
contra))

None

K

T

3. Dodge & Cox, Stock Fund

D

Dividend

J

T

B

Dividend

J

T

5. American Funds, Capful World Growth &
Income FD Inc CL A

C

dfissp

■

■a

6. American Funds, Fundamental INVS INC
CL A

C

T

7. American Funds, New World Fund CL A
NEWFX

B

IS' jjjiJi

J

T

8, American Funds, Growth Fund. Amor. A

a

J

T

B

Dividend

J

T

10. Von guard, 500 Index Signal

A

Dividend

J

T

11. T. Rowe Price, Blue Chip Growth

B

J

T

12. JP Motgnn. Mid Cap Value I

B

Dividend

i

T

13. Vanguard. Mid Cap Index

A

Dividend

J

T

14. T. Rowe Price. Mid-Cap Growth

B

I

T

15. Vanguard, Explorer

B

1

T

16. William Blair, International Growth 1

J

T

17. American Funds, Fudauicntnl Inv. A

n

Dividend

J

T

I. Income Gag Cedes:

(Sa Co l u m n! D! ami D4)

3. Value Cod r»

(Sr* Coluoma Cl »nd DJ)

J. Value McibuJ Codes
(See CglntiHi Q)

A-Sl.flCO or len
F -550,001 -SICO.OOO
J-SH.OftO Mirra
N-SJJO.OOI -£500.000
n -sm.ooo.ooo

Q "A^igiial
lI'Hoel Value

b -si.oo) r;.vio

O -SI 00.00 1 - Jl.OOOriOO

K -115,001 - JJO.OOD
O '£500 00) -SI.OOOJJOQ

II -C~l (Hal Fenlc Only)
V-Ohtr

C-JUOl -SSfiOD
HI -31.000.00! - S5JDU0M
1. ^30.001 -JIOO.DM
PI -SI.MJO.tOI . £5.000.000
W -Wore than 150.000.000
S-Ammnou
W-FeimiBd

D -35,00! -115.000 E -SI 5.001 - £50.000

JO -More (ban £5.000.000
M -3100.00) -£250,000

n-i$ww -ns, oofl.000

TCaihMrtn

901

VII. INVESTMENTS and TRUSTS — Incumc, value, ireuajicHora (Ineladej thrrv of spouie and drpe; utenl children; .in pp, JMt of filing Inttnialam.)
| 1 NONE (No reportable income, assets, or transactions.)

K

B.

C.

Dewiptinu of Asset*

Income during

Gross value at end of

Tmaetioru during reporting period

(ir^tudLng mist aiim)

reporting period

reporting period

(0 o

(i) a>

10 (2) P) <<>

tf)

Pbcc "(X)* slier etch met

Amount Type !c.g..

Value Value

Type (eg., Date Value Gain

Identity of

exempt from prior disc tenure

1 div., rent.

Code 1 Method

bay, cell. Momb - Code 1 Code 1

buyctftelier

<A-1I) oriRL)

(J-P) Code 3

redemption) Day (J-P) (A-H)

(if private

(0-W)

tnasactiaE)

MnocCiigCals A -41.D00 or ku 0-51.001 -57.500 C-SVOt.J5.0OO D-55.C01 -X 15.001

(Sa Catena Bt Ml CM) F -150,00! -S IDO, (JOO O-StOOflOl -JJ.OOOflOO HI -St.000.001 - JJ.OOgJMO HI -More U«oJ5, MO, 000

1. Value Coda J -SI 5.000 or kn K -S15.MI - SJO.OOO L -S50.M1 - JIOO.OCO M-StOOOOl -RJO.OCO

(St*Cnluim»Clifid(U> N~S3»,OOI - JSOO.OOO 0-1500,001 -Jl. 000,000 FI -S 1,000,00 1 - S3 .000,000 PI *45,000,001 -115,000,01

n -05,000, 001 - S50.0MW00 W -Mare this 150,000.000

3. Value Mated Coda
(S« Cchimn 05

»U«olc Value

R “Ctnl (Hal Eitllt Only)

T-CmI Mnia

902

FINANCIAL DISCLOSURE REPORT
Pagc7of8

Nitnr of fm« Reporting

Garda Marroolej a, Marina f y '•

Date of Report

01/0512011

VIII. ADDITIONAL INFORMATION OR EXPLANATIONS.

FINANCIAL DISCLOSURE REPORT

Page 8 of 8

Nunc of Pcnoo Reporting

Garda Mamolejo, Marina

Dart- «r Raport

01/05/201$

IX. CERTIFICATION.

I certify that *11 Information given above (Including information pertaining to my spouse and minor or dependent children, If any) Is
accurate, true, and complete to the belt of my knowledge and belief, and Ilia! any Informsitoo not reported mi withheld because It met applicable statutory
provbiom permitting non-dltdoinre,

1 further certify that earned Income from outside employment and honoraria and the acceptance of gift* which have been reported are In
compliance with (he provisions ofS U,S.C. app. § SOI ct scq., 5 U.S.C. § 7353, and Judicial Conference regulations.

NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE SUBJECT TO CIVIL
AND CRIMINAL SANCTIONS (5 US.C. app. § 104)

FILING INSTRUCTIONS

Mail signed original and 3 additional copies lo:

Committee on Financial Disclosure
Administrative Office of ihc United States Courts
Suite 2-301

One Columbus Circle, N.E.

Washington, D.C. 20544

903

FINANCIAL STATEMENT

NET WORTH

Provide a complete, current financial net worth statement which itemizes in detail ail assets (including bank
accounts, real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts,
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate members of your
household.

ASSETS

LIABILITIES

Cash on hand and in banks

5

200

Notes payable to banks-sccurcd

29

800

U.S. Government securities — EE Bonds

4

200

Notes payable to banks-unsecured

17

000

Listed securities-— sec schedule

m

834

Notes payable to relatives

Unlisted securities

Notes payable to others

Accounts and notes receivable:

Accounts and bills due

36

ooo

Due from relatives and friends

m

000

Unpaid income tax

Due from others

Other unpaid income and interest

Doubtful

Real estate mortgages payable — sec
schedule

463

000

Rea) estate owned — see schedule

. ■

000 !

Chattel mortgages and other Hens payable

Real estate mortgages receivable

Other debts-itemize:

Autos and other personal property

80

ooo ;

Student Loans

13

000

Cash value-life insurance

Other assets itemize:

Thrift Savings Plan Account

163

826

Total liabilities

m

Net Worth

mi

Total Assets

HO

ms

Total liabilities and net worth

■D

CONTINGENT LIABILITIES

GENE UAL INFORMATION

As endorser, comaker or guarantor

Are any assets pledged? (Add schedule)

NO

On leases or contracts

Arc you a defendant in any suits or legal
actions?

NO

Legal Claims

Have you ever taken bankruptcy?

NO

Provision for Federal Income Tax

Other special debt

904

FINANCIAL STATEMENT
NET WORTH SCHEDULES

Listed Securities

Vanguard Value Index Signal

$ 345

Vanguard 500 Index Signal

524

T. Rowe Price Blue Chip Growth

715

JP Morgan Mid Cap Value I

191

Vanguard Mid Cap Index

587

T. Rowe Price Mid-Cap Growth

594

Vanguard Explorer

399

William Blair International Growth I

360

AF Fundamental Inv. A

6,160

AF Growth Fund Amer. A

6,073

Dodge & Cox Stock

5,818

Artisan Mid Cap Value Fund

4,688

Fidelity Small Cap Stock

1,882

AF Europacific Growth A

2,971

FID Diversified International

2,755

AF Capital Income Blder CL A

3,993

AF Capital World Growth CL A

4,078

AF Fundamental Invs CL A

4,211

AF New World Fun CL A

4,490

Total Listed Securities

$ 50,834

Real Estate Owned

Personal residence

$ 380,000

Renta] property

320,000

Total Real Estate Owned

$ 700,000

Real Estate Morteases Payable

Personal residence

$ 237,000

Rental property

226,000

Total Real Estate Owned

$ 463,000

905

STATEMENT OF MICHAEL C. GREEN, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NEW YORK

Mr. Green. Thank you. I would also like to start by thanking the
President for the honor of this nomination. I’d like to thank Sen-
ator Schumer for recommending me and for his support, and I’d
like to thank his staff for all the work that they’ve done on my be-
half. I would like to thank you, Senator, and all of the members
of this Committee and Senator Grassley for providing me the op-
portunity to have this hearing. I would like to also thank Senator
Gillebrand for her support throughout this process.

Just briefly, if I can introduce my family and some friends here
with me. I have my wife Karen here with me, my daughter Vic-
toria, who’s a junior at Pittsford-Menden High School. My older
daughter Megan could not be with us; she’s studying abroad in
Spain right now and I believe watching on the webcast.

I also have my parents, George and Carol Green with us today.
I have a good friend, Mike Donoghue, who’s here, and another good
friend, Sarah Clark, who’s also on Senator Gillebrand’s staff, and
a long-time assistant, my long-time assistant and friend, Karen
Farsace, who’s here.

I would also like to acknowledge many special friends at home
who I believe are watching. I’d like to acknowledge many family
members who couldn’t be here who are watching. And finally, I
would like to acknowledge my staff at the Monroe County District
Attorney’s Office. It’s just an outstanding group of public servants.
I want to thank them and acknowledge them as well.

Senator Klobuchar. Well, thank you very much, Mr. Green. We
welcome your friends and family, and everyone watching via
webcast.

Ms. Lewis, thank you for being here. You had a nice introduction
from Congresswoman Christensen.

[The biographical information follows.]

906

UNITED STATES SENA'l E
COMMITTEE ON THE JUDICI VRY

QUESTIONNAIRE FOR JUDICIAL NOMINEES

PUBLIC

1 . Name : State full name (include any former names used).

Michael Charles Green

2. Position : State the position for which you have been nominated.

United States District Judge for the Western District of New York

3. Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.

Monroe County District Attorney's Office
47 South Fitzhugh Street
Rochester, New York 14614

Residence: Pittsford, New York

4. Birthplace : State year and place of birth.

' 961; Rochester, New York

5. Education : List in reverse chronological order each college, law school, or any other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.

1983 - 1986, Western New England College, School of Law; J.D., 1986

1979 - 1983, LeMoyne College; B.S., 1983

1982, State University of New York at Albany; No degree received

6. Employment Record : List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation
from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.

907

1987 -Present

Monroe County District Attorney’s Office
47 South Fitzhugh Street
Rochester, New York 14614
District Attorney (2004 - Present)

First Assistant District Attorney (2001 — 2003)
Assistant District Attorney (1987 - 2001)

2008-2010

Rochester Institute of Technology

One Lomb Memorial Drive

Rochester, New York 14623

Adjunct Professor - Criminal Justice Department

1985- 1987

Morris and Morris, Attorneys
James F„ Morris, Esq.

120 Corporate Woods
Rochester, New York 14623
Associate Attorney (1987)

Law Clerk (1985- 1986)

1985- 1986

Cooledge and Lauro, Attorneys
80 Maple Street

Springfield, Massachusetts 01 160
Law Clerk

Summer 1984

O’Cormoll Electric Company
830 Phillips Road
Victor, New York 14564
Laborer

Summer 1983
Self-employed
Painter

Other A ffili ations (Uncompensated)

2009 - Present
Rise Up Rochester
244 South Plymouth Avenue
Rochester, New York 14608
Board Member

2

908

2008 — Present

Huther Doyle Memorial Institute (Chemical Dependency Treatment)
360 East Avenue
Rochester, New York 14604
Board Member

2007 - Present

New York Prosecutors Training Institute
1 07 Columbia Street
Albany, New York 12210
Board Member

2006 - Present

Boys and Girls Club of Rochester
500 Genesee Street
Rochester, New York 1461 1
Board Member

2004 - Present

National Center for Missing and Exploited Children - NY Branch
275 Lake Avenue
Rochester, New York 14608
Board Member

2008-2010

American Cancer Society, Eastern Division, Lakes Region
1400 Winton Road North
Rochester, New York 14609
Board Member

1997-2009

Family and Friends of Murdered Children
No current address (merged with Rise Up Rochester)

Board Member

1999-2002

The Daily Record (Legal Newspaper)

1 6 West Main Street
Rochester, New York 14609
Advisory Board

3

909

7. Military Service and Draft Status : Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.

I did not serve in the U.S. Military. T registered for the selective service upon turning 18.

8. Honors and Awards : List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.

• 2009 Prosecutor of the Year, Executive Award - New York Prosecutors Training
Institute

• 2008 Youth Crime Watch of America — Casey Award as the National Public Official of
the Year

• 2008 Fight Crime Invest in Children “Champion for New York’s Children” Award -
presented at the New York State District Attorneys Association Annual meeting

• 2007 Carl S. Hallauer Award - Rochester Police Department Rosewood Club for
“extraordinary contributions to the criminal justice system and the youth of our
community”

• 2007 Chairman’s Award from the Boys and Girls Club of Rochester

• 2007 R1T Department of Criminal Justice Senior Class Award for Contributions to
Justice

• 2005 Toastmasters International Communication and Leadership Award

• 2004 Greece Democratic Committee - Person of the Year

• 2003 Certificate of Recognition - Monroe County/City of Rochester Coalition for Crime
Victims

• 2003 Certificate of Recognition Monroe County Public Safety Crime Laboratory

• 2000 Audrey Smith Award for advancing the cause of victims, their families and friends

9. Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.

Monroe County Bar Association

Criminal Justice Section - Chairman (1996 - 1997)

Judiciary Committee (1998 - 2000); Non-voting member (2004 - Present)
District Attorneys Association of the State of New York (2000 - Present)

Member, Executive Committee (2004 - Present)

Vice President (2007 - present)

President-elect (2010)

Association of Government Attorneys in Capital Litigation (1997 -2001)

Regional Vice President (1998 - 2000)

4

910

10. Bar and Court Admission :

a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.

New York, 1987

There has been no lapse in membership.

b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
in membership. Give the same information for administrative bodies that require
special admission to practice.

New York state courts, 1987
Supreme Court of the United States, 2004

There has been no lapse in membership.

11. Memberships :

a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 10 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership or participation, and indicate any office you held.
Include clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications

American Cancer Society, Eastern Division, Lakes Region
Board Member (2008 - 2010)

Ancient Order of Hibernians, Monroe County, New York (2004 - 2005)

Boys and Girls Club of Rochester

Board Member (2006 - Present)

Family and Friends of Murdered Children
Board Member (1997 - 2009)

Fight Crime: Invest in Kids New York (2004 - Present)

Greater Rochester YMCA (1987 — Present)

Huther Doyle Memorial Institute (Chemical Dependency Treatment)

Board Member (2008 - Present)

Monroe County Crime Lab Advisory Team (2004 - 2005)

National Center for Missing and Exploited Children - NY Branch
Board Member (2004 — Present)

National College of District Attorneys, instructor (1999, 2001)

New York Prosecutors Training Institute
Board Member (2007 - Present)

New York State Commission on Sentencing Reform (2007 - 2009)

5

911

New York State Juvenile Justice Task Force (2008 - 2009)

Rise Up Rochester

Board Member (2009 — Present)

Rochester City Court Judge Selection Committee (2006)

Rochester Police Department’s Community Volunteer Response Team,

Liaison (2000 - 2002)

Rochester Rotary (2004 - present)

The Daily Record (Legal Newspaper)

Advisory Board (1999-2002)

Wind Industry Ethics Advisory Task Force (2009 - 2010)

b. The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion, or national
origin. Indicate whether any of these organizations listed in response to 1 la above
currently discriminate or formerly discriminated on the basis of race, sex, religion
or national origin cither through formal membership requirements or the practical
implementation of membership policies. If so, describe any aetion you have taken
to change these policies and practices.

To the best of my knowledge none of the above organizations discriminates or
formerly discriminated on the basis of race, sex, religion or national origin, with
the exception of the Ancient Order of the Hibernians, who limit their membership
to “men 16 years and older who are practicing Roman Catholics of Irish birth or
descent and who are citizens of United States of America or who have declared
their intentions to become citizens of the United States of America.” With respect
to the Hibernians, I have been told their records show 1 paid dues for two years
(2004 and 2005). I was unaware of the group’s membership restrictions at the
time. To the best of my recollection, I attended only one meeting and thereafter
ended my membership by not paying dues. I did not take any action to change
their policies or practices.

12. Publis hed Writings and Public Statements :

a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Supply four (4) copies of all published
material to the Committee.

This list represents the published material I have identified through searches of
my memory, my files, local newspaper archives, and internet databases. I have
tried my best to list all of them here, although there may be some that I have not
been able to recall or identify.

Introduction to Winning Trial Strategies in the Empire State , New York
Prosecutors Training Institute, July 2009. Copy supplied.

6

912

Cooperation Fuels Operation IMPACT Success, Rochester Democrat and
Chronicle Guest Essay, Jan. 3, 2009. Copy supplied.

My Partnership with the Boys and Girls Club: Using Forfeiture Money to Benefit
Kids , Empire State Prosecutor, Vol. 6, No. 1, at 5, published by the New York
State Prosecutors Training Institute, Fall 2008. Copy supplied.

DA ’s Office Bears Big Load, Too , Rochester Democrat and Chronicle Guest
Essay, Mar. 31, 2008. Copy supplied.

Project Exile, 13WHAM.com (ABC News), Apr. 30, 2008. Copy supplied.

Witnesses Get Protection , Rochester Democrat and Chronicle Guest Essay, Jan.
13,2008. Copy supplied.

Vying for Top Spots in Government, Law ; Candidate Questions for District
Attorney, Rochester Democrat and Chronicle, Oct. 28, 2007. Copy supplied.

Responses to Questions published in First Bible Baptist Church Candidates Night
Book, Oct. 28, 2007. Copy supplied.

Open Door Wider to DNA Use to Track Criminals, Cut Crime, Rochester
Democrat and Chronicle Guest Essay, May 29, 2007. Copy supplied.

Protect Children from Grips of Repeal Sex Offenders on Loose, Rochester
Democrat and Chronicle Guest Essay, Dec 17, 2006. Copy supplied.

All Should Do Their Part to Fight Violence in Rochester, Rochester Democrat and
Chronicle Guest Essay, July 1 8, 2006. Copy supplied.

Is Curfew Remedy for Teen Crime?, Rochester Democrat and Chronicle Guest
Essay, May 28, 2006. Copy supplied.

Untie Criminal Justice System 's Hands in Use of DNA Evidence , Rochester
Democrat and Chronicle Guest Essay, Jan. 13, 2006. Copy supplied.

Fight Crime: Redefine ‘Early Education’, Empire State Prosecutor, published by
the New York State Prosecutors Training Institute, Fall 2005. Copy supplied.

Gun Felons are Swept from Street Block to Cellblock, Rochester Democrat and
Chronicle Guest Essay, July 19, 2005. Copy supplied.

Response to questions regarding racism, Editorial Page of the Rochester
Democrat and Chronicle, Jan. 14, 2005. Copy supplied.

7

913

Drug Law Reform Misses Mark: All-Purpose Ami-Drug Strategy, Rochester
Democrat and Chronicle Guest Essay, Dec. 19, 2004. Copy supplied.

Cheers Sped District Attorney in N. Y. C. Marathon, Rochester Democrat and
Chronicle Guest Essay, Nov. 24, 2004. Copy supplied.

Our Safety: Community Effort to Cut Crime , July 15, 2004, Rochester Democrat
and Chronicle Guest Essay. Copy supplied.

Our Safety: Community Crime-Fighting, Rochester Democrat and Chronicle
Guest Essay, Mar, 8, 2004. Copy supplied.

Fightingfor Rochester 's Future: Campaign 2003 Race for District Attorney,
Rochester Democrat and Chronicle Guest Essay, Oct. 13, 2003. Copy supplied.

Responses to Questions published in First Bible Baptist Church Candidates Night
Book, Oct. 2003. Copy supplied.

Safety and Security, Rochester Democrat and Chronicle Guest Essay, Apr. 1 1 ,
2003. Copy supplied.

Responses to Questions published in the Daily Record Newspaper for the 2003
District Attorney Campaign. Copy supplied.

Responses to Questions from the Rochester Democrat and Chronicle for the 2003
District Attorney Campaign. Copy supplied.

Monroe County DA 's Office Handles Huge Caseload, Rochester Daily Record,
May 1 , 2002. Copy supplied.

Help Local Crime Victims hy Serving on Juries and Joining Crime Watches,
Rochester Democrat and Chronicle Guest Essay, Apr. 23, 2002. Copy supplied.

Anguish Persists after Case is Closed, Rochester Democrat and Chronicle Guest
Essay, Apr. 1 1, 2000. Copy supplied.

Monroe County District Attorney’s Office 2007 Annual Report. Copy supplied.

Monroe County District Attorney’s Office 2006 Annual Report. Copy supplied.

Monroe County District Attorney’s Office 2005 Annual Report. Copy supplied.

Monroe County District Attorney’s Office 2004 Annual Report. Copy supplied.

b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,

8

914

committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, give the
name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.

This list represents the reports, memorandum or policy statements I have
identified through searches of my memory, my files, and internet databases. I
have tried my best to list all of them here, although there may be some that I have
not been able to recall or identify.

1 was appointed to and served as a member of the New York State Task Force on
Transforming Juvenile Justice created by Governor Paterson. As a member of the
Task Force, I contributed to the Final Report (Charting a New Course, A
Blueprint for Transforming Juvenile Justice in New York State, December 2009)
of the Task Force. A copy of the report is supplied.

I was appointed to and served as a member of the New York State Commission
on Sentencing Reform created by Governor Spitzer. As a member of the
Commission, I contributed to the Preliminary Report (A Preliminary Proposal for
Reform, October 15, 2007) and Final Report (The Future of Sentencing in New
York State: Recommendations for Reform, January 30, 2009) issued by the New
York State Commission on Sentencing Reform. Copies of the reports are
supplied.

From May 10-12, 2004, 1 attended a New York State Summit on Elder Abuse and
was part of the Prosecution and Law Enforcement Work Group, which generated
recommendations for a Final Report issued in January 2005 by the summit
sponsor. Lifespan of Greater Rochester, Inc. A copy of the report is supplied.

c. Supply four (4) copies of any testimony, official statements or other

communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.

This list represents the testimony, official statements or other communications I
have identified through searches of my memory, my files, and internet databases.

I have tried my best to list all of them here, although there may be some that I
have not been able to recall or identify.

On October 25, 2005, 1 testified before the New York State Commission of
Investigation at a hearing about gang activity. I have no notes, transcript or
recording. Press coverage of my remarks is supplied.

On September 20, 2005, 1 testified before the New York State Commission of
Investigation at a hearing regarding DNA evidence. A copy of the materials from
which I testified is supplied.

9

915

On April 7, 2005, 1 testified in Rochester, New York, before a New York State
Assembly Republican Task Force on Urban Crime. A copy of the materials from
which I testified is supplied.

On January 25, 2005, 1 testified at a hearing held in Albany, New York, by the
New York State Assembly Standing Committees on Codes, Judiciary and
Corrections regarding the death penalty. A copy of the materials from which I
testified is supplied.

d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by you, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk. If you do not have a copy of the speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.
If you did not speak from a prepared text, furnish a copy of any outline or notes
from which you spoke.

Over the last twenty-three years I have given hundreds if not thousands of talks
that would appear to fit within the above question. In addition to continuing legal
education lectures, the overwhelming majority of these talks were to community
groups regarding the Monroe County District Attorney’s Office. 1 have given
many of the talks without prepared notes. I do on occasion use notes or
PowerPoint presentations. Some of the notes and presentations have not been
saved, but where they are aviilable I have supplied copies. While I have searched
my records, memory and internet databases for speaking engagements it is
possible that t have given other talks I have been unable to recall or identify.

New York Prosecutors Training Institute CLE Programs - Lecturer/Presenter
Below is a list of events that I have been able to identity and recall. I have
supplied materials where available. The address ofNYPTI is 107 Columbia
Street, Albany, New York 12210.

• July 29, 2010: Distributing Seized Assets, Project Step Up. PowerPoint
supplied.

• January 29, 2010: Prosecutors Working With Communities, Best Practices
Panel Presentation at District Attorneys Association of the State of New
York Annual Winter Meeting. I have no notes, transcript or recording.

• August 5-7, 2002: Survey of Capital Punishment, “Mechanics of Capital
Jury Selection.” Outline supplied.

• April 2002: Introduction to DNA Evidence, “Effective Cross-Examination
of a DNA Expert.” Outline supplied.

• February 2002: Terrorism and Emerging Legal Issues in Murder
Prosecutions, “Handling a Death Penalty Case.” Outline supplied.

10

916

• August 2001 : Capital Prosecution Survey Course, “A View from the
Box.” I have no notes, transcript or recording.

• August 1999: Capital Prosecutions Demonstrations and Discussions,
lecture and demonstration entitled, “Arguing for Death.” Outline
supplied.

• January 1998: Panelist, Statewide Conference on Capital Prosecution,
Emerging Legal Issues. I have no notes, transcript or recording.

Monroe County District Attorney’s Office CLE Presentations

• April 10, 2010: Opening Statements. Outline supplied.

• November 14, 2009: The Art of Cross Examination. PowerPoint supplied.

• April 8, 2006: Lawyering Skills, Preparing and Presenting Your Case.
Outline supplied.

• February 2006: Sufficiency of Felony Accusatory Instruments. Outline
supplied.

• November 13, 2004: Ceasefire and Related Violence Reduction Efforts.
Outline supplied.

• March 27, 2004: Preparing for a Hearing. I have no notes, transcript or
recording.

• March 23, 2002: Charging Decisions. Outline supplied.

• November 3, 2001 : Probable Cause, Concerns, Issues and Related Cases.
Outline supplied.

• March 3 1 , 200 1 : Presentation of DN A Testimony and Related Legal
Issues. Outline supplied.

Other CLE Presentations

• October 19, 2007: Panelist, “School Violence: Practical and Legal
Consideration,” Monroe County Bar Association. Written materials and
video supplied.

• November 28, 2005: Panelist, Post-Sentence Civil Commitments for Sex
Offenders, Greater Rochester Association for Women Attorneys, Hall of
Justice in Rochester, New York. I have no notes, transcript or recording.
GRAWA and press coverage of the event is supplied. The address of
GRAWA is 279 Castlebar Road, Rochester, New York 14610.

• November 18, 2004: Panelist, “Stalking: Preventing a Workplace
Disaster,” Monroe County Bar Association and Greater Rochester
Association for Women Attorneys. 1 have no notes, transcript or
recording. GRAWA and press coverage is supplied.

Speeches, Panel Discussions, and other Public Appearances

• July 28, 2010: Panelist, Communities and Justice Partnerships &
Challenges for the 21 s ' Century, New York County District Attorney’s

11

917

Office and John Jay College of Criminal Justice, served on two panels
entitled, “New Perspectives on Prosecution” and “Community
Prosecution.” Notes for “New Perspectives” panel supplied. I have no
notes, transcript or recording for the “Community Prosecution” panel.

• July 15, 2010: Rise Up Rochester, ceremony to honor Audrey Smith.

Press coverage supplied. The address of the organization is 244 South
Plymouth Avenue, Rochester, New York 14604.

• July 14, 2010: ACT Rochester Panel Discussion on Youth Violence. 1
have no notes, transcript or recording. The address of ACT Rochester is
500 East Avenue, Rochester, New York 14607.

• June 10, 2010: Boys and Girls Club of Rochester Accelerated Reader
Program Awards Ceremony, spoke on importance of reading. I have no
notes, transcript or recording. The address of the Club is 500 Genesee
Street, Rochester, New York 14611.

• June 9, 2010: Panelist, 22 '“’ Annual Preventative Coalition Conference,
Stop the Violence and Rebuild our Community, Monroe County
Preventive Service Coalition and Nazareth College Department of Social
Work. I have no notes, transcript of recording. The address of the
Coalition is Monroe County Department of Human Services, 691 St. Paul
Street, Rochester, New York 14605.

• May 20, 2010: Speaker at roast for local radio personalities Bob Lonsberry
and Brother Wease, Burgundy Basin Inn, Rochester, New York. I have no
notes, transcript or recording.

• May 4, 2010: Monroe County Sheriffs Department Promotional
Ceremony, Monroe Community College, spoke on importance of integrity
and cooperation between agencies. I have no notes, transcript or
recording. The address of the Sheriffs Department is Public Safety
Building, 130 South Plymouth Avenue, Rochester, New York 14614.

• April 1 5, 20 1 0: Monroe County Sheriffs Office Senior Citizens
Academy, Hall of Justice, Rochester, New York, spoke on DA’s Office. I
have no notes, transcript or recording. The address of the Sheriffs
Department is Public Safety Building, 130 South Plymouth Avenue,
Rochester, New York 14614.

• April 8, 2010: IMPACT/Ceasefire call in, Hall of Justice, Rochester, New
York, spoke to at risk youth regarding consequences of their behavior. I
have no notes, transcript or recording. Operation IMPACT/Ceasefire is an
initiative of the New York State Division of Criminal Justice Services
whose address is 4 Tower Place, Albany, New York 12203.

• April 6, 2010: East Ridge High School, Irondequoit, NY, Participation in
Government class, spoke regarding the role of the DA. I have no notes,
transcript or recording. The address of the school is 2350 East Ridge
Road, Rochester, New York 14622.

• March 3 1, 20 1 0: Panelist, “Parents Who Host Lose the Most,” Drug Free
Action Alliance, spoke on potential criminal consequences for serving or
allowing minors to consume alcohol, Irondequoit Town Hall. 1 have no
notes, transcript or recording.

12

918

• March 31, 20i0: McQuaid Jesuit High School, Brighton, New York,
spoke on the role of the DA. 1 have no notes, transcript or recording. The
address of the school is 1800 Clinton Avenue South, Rochester, New York
14620.

• March 30, 2010: Pittsford Alliance for Substance-Free Youth, Town Hall
Meeting, Pittsford Sutherland High School, spoke on consequences
relating to consumption of alcohol by minors. I have no notes, transcript
or recording. The Alliance does not have a physical address.

• March 25, 2010: Panelist, Rochester Neighborhood 14621 public meeting,
discussed local crime and safety issues. 1 have no notes, transcript or
recording. The address for the Community Association for the
neighborhood is 1171 North Clinton Avenue, Rochester, New York
14621.

• March 24, 2010: Panelist, HEART Coalition, “Numbers Speak the Truth,
Real Stories About Youth,” spoke of importance of positive role models
for youth and examples of positive youth behavior, St. Mary’s Church,
Rochester, New York. I have no notes, transcript or recording. The
address of the Coalition is 400 Dewey Avenue, Rochester, New York
14613.

• March 19, 2010: Panelist, Greater Rochester Association for Women
Attorneys, discussion of Rochester author Amy Bach’s book. Ordinary
Injustice: How America Holds Court. I have no notes, transcript or
recording. The address of GRAWA is 279 Castlebar Road, Rochester,
New York 14610.

• March 10, 2010: Pediatric Grand Rounds and Community Forum,
University of Rochester Medical Center, spoke on the importance of
quality after school prog, jus for children. I have no notes, transcript or
recording. The address of the medical center is 601 Elmwood Avenue,
Rochester, New York 14642.

• March 9, 20 1 0: Rochester Rotary Club, Lunch Speaker with Mary
Whittier, spoke on Child Abuse and the Bivona Child Advocacy Center. I
have no notes, transcript or recording. The address of the Rotary Club is

1 80 Linden Oaks, Suite 200, Rochester, New York 14625.

• March 8, 2010: Irondequoit High School Personal Law Class, Irondequoit,
NY, spoke on role of the DA and constitutional rights. I have no notes,
transcript or recording. The address of the high school is 260 Cooper
Road, Rochester, New York 14617.

• March 8, 2010: Monroe Community College, Criminal Justice Club,
Damon Campus, spoke on the role of the DA and my career. I have no
notes, transcript or recording. The address of the College is 1000 East
Henrietta Road, Rochester, New York 14623.

• March 6, 2010: Keynote speaker, Webster Police Benevolent Association
Community, Citizens, Police Awards Dinner, spoke on the importance of
law enforcement and community relations. I have no notes, transcript or
recording. The address of the Webster Police Department is 1000 Ridge
Road, Webster, New York 14580.

13

919

• January 15, 2010: Western New York Crime Victims Coalition, Criminal
Justice Training Center, spoke on legal updates regarding victims’ issues.

1 have no notes, transcript or recording. The address of the Coalition is
222 West Main Street, Batavia, New York 14020.

• January' 1 4, 20 1 0: Rochester Teachers Association, “A Conversation with
People in Charge,” spoke on crime trends and crime involving the school
district. 1 have no notes, transcript or recording. The address of the RTA
is 30 North Union Street, Suite 301, Rochester, New York 14607.

• January 1 1, 2010: Rochester City School District Youth and Justice
Program, Monroe County’ Probation Department, spoke on crime trends
and positive opportunities for youth. I have no notes, transcript or
recording. The address of the Program is 107 North Clinton Avenue,
Rochester, New York 14604.

• January 6, 2010: Pittsford Rotary, Addressing Crime in Rochester.
PowerPoint supplied.

• December 1, 2009: Rush Henrietta Rotary Club, Crime in Rochester and
the DA’s Office. I have no notes, transcript or recording. The address of
the club is P.O. Box 22838, Rochester, New York 14692.

• November 17, 2009: Law Enforcement Agency Award Ceremony,
Mothers Against Drunk Driving, acceptance remarks on behalf of the
District Attorney’s Office. I have no notes, transcript or recording. The
address of MADD is 2125 Buffalo Road, #115, Rochester, New York
14624.

• October 27, 2009: Community Forum, National Center for Missing and
Exploited Children and the NY Attorney General’s Office, opening
Remarks on keeping children safe. I have no notes, transcript or
recording. The address of the NCMEC is Charles B. Wang International
Children’s Building, 699 Prince Street, Alexandria, Virginia 22314.

• October 15, 2009: Monroe County Sheriffs Office Senior Citizens
Academy, Hall of Justice, Rochester, New York, spoke on DA’s Office. 1
have no notes, transcript or recording. The address of the Sheriffs
Department is Public Safety Building, 1 30 South Plymouth Avenue,
Rochester, New York 14614.

• October 13, 2009: groundbreaking ceremony for new Monroe County
Public Safety Laboratory. I have no notes, transcript or recording. The
address of the Laboratory is 150 South Plymouth Avenue, Room 500,
Rochester, New York 14614.

• September 29, 2009: Project Exile 1 1* Annual Report to the Community,
remarks regarding the DA’s office role in and update regarding Project
Exile, Rochester, New York. I have no notes, transcript or recording, but
press coverage on the event is supplied. Project Exile is an initiative run
through the U.S. Attorney’s Office whose address is 620 Federal Building,
100 State Street, Rochester New York 14614.

• September 17, 2009: Monroe County Sheriffs Office Awards Lunch,
spoke on cooperation between offices. I have no notes, transcript or

14

920

recording. The address of the Sheriffs Department is Public Safety
Building, 130 South Plymouth Avenue, Rochester, New York 14614.

« September 9, 2009: TMPACT/Ceasefire call-in. Hall of Justice, Rochester,
New York, spoke to at risk youth regarding consequences of their
behavior. I have no notes, transcript or recording. Operation
IMPACT/Ceasefire is an initiative of the New York State Division of
Criminal Justice Services whose address is 4 Tower Place, Albany, New
York 12203.

• September 8, 2009: Rochester Rotary guest speaker. Riverside Convention
Center. Notes supplied.

• August 7, 2009: University of Rochester Medical Center, “Advocacy in
Action,” spoke to new doctors regarding crime and children’s issues. I
have no notes, transcript or recording. The address of the medical center
is 601 Elmwood Avenue, Rochester, New York 14642.

• July 21 , 2009: Jewish Community Center, Men in Transition group,
Current events in the DA’s Office. 1 have no notes, transcript or
recording. The address of the center is 1 200 Edgewood Avenue,
Rochester, New York 1461 8.

• June 19, 2009: Greater Rochester After School Alliance and City of
Rochester Legislative Breakfast, spoke on relationship between crime and
issues effecting children and on particularly effective after school
programs. I have no notes, transcript or recording. GRASA is an
initiative of the Rochester Area Community Foundation whose address is
500 East Avenue, Rochester, New York 14607.

• June 1 1 , 2009: Monroe County Probation Officers Association Meeting,
keynote speaker, spoke on legislative changes including drug law reform,
and the importance of interagency cooperation. 1 have no notes, transcript
or recording. The address of the MCPOA is 33 North Fitzhugh Street,
Rochester, New York 14614.

• June 3, 2009: Hilton Middle School career day, spoke on DA’s office and
my career. 1 have no notes, transcript or recording. The address of the
school is 100 School Lane, Hilton, New York 14468.

• May 28, 2009: Rochester City School District, School of the Arts, SADD
day, spoke on drunk driving and the effects on students. I have no notes,
transcript or recording. The address of the district is 1 3 1 West Broad
Street, Rochester, New York 14614.

• April 29, 2009: Genesee County Law Day Dinner, Genesee County Bar
Association, spoke on the Law Day theme. I have no notes, transcript or
recording. The address of the Bar Association is c/o Durin Rogers,
President (Assistant County Attorney - Department of Social Services),
5130 East Main Street Road, Batavia, New York 14020.

• April 8, 2009: Irondequoit Citizens Police Academy, spoke on the DA’s
office. I believe I spoke each year since 2004, but I do not know the dates
of those talks. 1 have no notes, transcript or recording. The address of the
irondequoit Police Department is 1300 Titus Avenue, Rochester, New
York 14617.

15

921

• March 31, 2009: Rochester City School District, Monroe High School
Law and Government Classes, spoke on DA’s office, the court system, the
Constitution, and careers, I have no notes, transcript or recording. The
address of the district is 131 West Broad Street, Rochester, New York
14614,

• March 27, 2009: Monroe County Bar Association, Law over Lunch, spoke
on media and the criminal justice system. 1 have no notes, transcript or
recording. The address of MCBA is One West Main Street, 10 th Floor,
Rochester, New York 14614.

• March 26, 2009: McQuaid Jesuit High School, Brighton, NY, spoke on
the role of the DA. I have no notes, transeript or recording. The address
of the school is 1 800 Clinton Avenue South, Rochester, New York 14620.

• March 1 8, 2009: Press conference. Fight Crime: Invest in Kids New York,
remarks on the need for increased early childhood education funding. I
have no notes, transcript or recording. The address of Fight Crime is 3
Columbia Place, Floor 2, Albany, New York 12207.

• March 6, 2009: Finger Lakes Consortium of Alcohol and Substance Abuse
Services Annual Spring Legislative Breakfast, keynote speaker, spoke on
drug law reform and drug treatment through the criminal justice system. I
have no notes, transcript or recording. The Consortium does not have a
physical address.

• February 27, 2009: Rochester/Monroe County Domestic Violence
Consortium 1 0 th Annual Legislative Breakfast, Introduction. I have no
notes, transcript or recording. The address of the Consortium is 244 South
Plymouth Avenue, Rochester, New York 14608.

• January 9, 2010: Gates Supervisor Ralph Esposito retirement party. I
have no notes, transcript or recording.

• November 1 8, 2008: Irondequoit community forum on the state’s
Community Partnership Initiative, Irondequoit High School. I spoke with
then-Attomey General Cuomo about cooperation between my office and
the Attorney General’s office. I have no notes, transcript or recording.

The address of the high school is 260 Cooper Road, Rochester, New York
14617.

• October 23, 2008: community meeting, HEART Coalition, report on anti-
drug efforts. I have no notes, transcript or recording. The address of the
Coalition is 400 Dewey Avenue, Rochester, New York 14613.

• September 18, 2008: United States Attorney’s Office for the Western
District of New York Gang Conference, closing remarks. I have no notes,
transcript or recording. The address of the U.S. Attorney’s Office is 138
Delaware Avenue, Buffalo, New York 14202.

• September 3, 2008: news conference with Fight Crime: Invest in Kids
New York to announce report on the effect of graduation rates on crime. 1
have no notes, transcript or recording. The address of Fight Crime is 3
Columbia Place, Floor 2, Albany, New York 12207.

• April 8, 2008: SUNY Brockport Criminal Justice Class, Addressing Crime
in Rochester. PowerPoint supplied.

16

922

• April 2, 2008: Panelist, “Parents Who Host Lose the Most” Irondequoit
Committee, Drug Free Action Alliance, discussion about underage
drinking and parents who host drinking parties for minors. I have no
notes, transcript or recording.

• March 1 8, 2008: Rochester Public Library, “Books Sandwiched-In,” book
review talk on The Nine: Inside the Secret World of the Supreme Court, by
Jeffrey Toobin. I have no notes, transcript or recording. The address of
the Rochester Public Library is 1 15 South Avenue, Rochester, New York
14604.

• February T5, 2008: Northwest AARP Monthly Meeting, remarks on work
of and challenges facing the District Attorney’s office. I have no notes,
transcript or recording. Press coverage supplied.

• December 31, 2007: Speech at my swearing-in as District Attorney,
Rochester, New York. 1 have no notes, transcript or recording but press
coverage is supplied. The address of the District Attorney’s Office is 47
South Fitzhugh Street, Rochester, New York 14614.

• October 3 1, 2007: District Attorney candidate radio debate on 1180
WHAM. Press coverage and video story available at

http ://fin aerlakes.vnn.com/content/354963/nn onr oe-da-debate-gets-nastv/ .
The address of 1 1 80 WHAM is 1 700 HSBC Plaza, 1 00 Chestnut Street,
Rochester, New York 14604.

• October 30, 2007: Irondequoit Town Hall vigil for victims of domestic
violence. Video clip and press coverage available at
http://www.mDnnow.com/towns/irondeauoit/x481 172438 . The address of
the Town Hall is 1280 Titus Avenue, Rochester, New York 14617.

• October 28, 2007: Candidates Night, First Bible Baptist Church, Greece,
New York. Notes supplied and questions I answered for the Candidates
Night Book were supplied in response to 12(a).

• October 23, 2007; Meet the Candidates Night, Community Place, St.
Mark’s & St. John's Episcopal Church, Rochester, New York. I have no
notes, transcript or recording.

• October 9, 2007: Downtown Rochester Rotary District Attorney
Candidates Debate. Copies of my opening and closing statements are
supplied and press coverage of my debate remarks is also supplied.

• October 3, 2007: campaign spot on public television. Script supplied.

• September 28, 2007: 9 th Anniversary of Project Exile event, Holiday Inn,
Gate, New York. I spoke on the MCDA’s role in Project Exile and the
cooperation between agencies. I have no notes, transcript or recording.
Press coverage supplied. Project Exile is an initiative run through the U.S.
Attorney’s Office whose address is 620 Federal Building, 100 State Street,
Rochester New York 14614.

• August 1 6, 2007: Fight Crime: Invest in Kids New York event at Caring &
Sharing Child Care Center, remarks about the importance of pre-
kindergarten education as crime preventative. I have no notes, transcript
or recording. Press release supplied. The address of Fight Crime is 3
Columbia Place, Floor 2, Albany, New York 12207.

17

923

• July 3 1 , 2007: Address to Executive Committee of the Rochester Business
Alliance. PowerPoint supplied

• May 24, 2007: Commencement speaker, Bryant & Stratton College
graduation ceremony. I have no notes, transcript or recording. The
address of the college is 1 50 Bellwood Drive, Rochester, New York
14606.

• May 17, 2007: Monroe County Democratic Committee Nominating
Convention. Notes supplied.

• November 2, 2006: Keynote speaker, League of Women Voters luncheon,
Hyatt Regency, Rochester, New York. I have no notes, transcript or
recording. The address of the League of Women Voters is 45 Exchange
Boulevard, Suite 508, Rochester, New York 14614.

• October 25, 2006: East Rochester community forum, remarks on
community and crime prevention. I have no notes, transcript or recording.
Press coverage supplied.

• June 28, 2006: Youth Voice, One Vision Council meeting, public Q&A
session on a proposed youth curfew in Rochester. I have no notes,
transcript or recording. The address of the Council is 400 Dewey Avenue,
Rochester New York, 14613.

• June 24, 2006: Commencement address to Edison Tech School of
Engineering and Manufacturing. Notes supplied.

• May 3, 2006: Panelist, “Parents Who Host, Lose the Most,” Drug Free
Action Alliance, discussion of serving alcohol to minors. I have no notes,
transcript or recording.

• May 2006: National Council on Alcoholism and Drug Dependence annual
luncheon, discussed NCADD's work with Rochester and Monroe County.

I have no notes, transcript or recording.

• March 29, 2006: Speech to Henrietta Chamber of Commerce. Notes
supplied.

• March 15, 2006: Panelist, Bryant & Stratton, careers in criminal justice. I
have no notes, transcript or recording. The address of the college is 150
Bellwood Drive, Rochester, New York 14606.

• March 7, 2006: judge, Sydney Rubin Mock Trial, Rochester, New York. I
have no notes, transcript or recording.

• 2006: Monroe Community College Anti Violence Forum. Notes supplied

• December 14, 2005: Probation Conference, New York, New York. Notes
supplied

• December 13, 2005: Rochester Rotary guest speaker. Oak Hill Country
Club. I have no notes, transcript or recording. The address of the
organization is 100 Meridian Centre Boulevard, #304, Rochester, New
York 14618.

• September 28, 2005: Speaker at Hamlin Town Hall, police protection and
crime issues. I have no notes, transcript or recording. This event was
sponsored by the Town of Hamlin Democratic Committee, which is
affiliated with the Monroe County Democratic Committee. The address of

18

924

the MCDC is 1150 University Avenue, Building 5, Rochester, New York
14607.

• May 30, 2005: Keynote speech, Pittsford Memorial Day Parade, Pittsford,
New York. I have no notes, transcript or recording.

• April 27, 2005: Speakers forum, Monroe County Bar Center for
Education, discussed effects of changes to D.A. Office’s plea bargaining
policy. I have no notes, transcript or recording. The bar association’s
address is I West Main Street, 10th Floor, Rochester, New York 14614.

• February 15, 2006: guest speaker. Southeast Monroe Chapter 3307 AARP
meeting. I spoke generally about the District Attorney’s Office and on
elder abuse. I have no notes, transcript or recording.

• January 1 8, 2005: Monroe County Bar Association’s Lawyers for
Learning program. School 29 Elementary, remarks to students on how to
“stay out of the justice system,” Rochester, New York. 1 have no notes,
transcript or recording. The bar association’s address is 1 West Main
Street, 10th Floor, Rochester, New York 14614.

• 2005: Anti-Violence talk. 1 do not recall the exact date, location or
sponsor. Notes supplied.

• October 7, 2004: Domestic Violence Conference, “Linking Systems,
Saving Lives,” Rochester/Monroe County Domestic Violence Consortium.
1 have no notes, transcript or recording. Press coverage supplied. The
organization’s address is 244 South Plymouth Avenue, Rochester, New
York 14608.

• July 7, 2004: “Anatomy of a Trial” at “Revitalizing Law-Related and
Civic Education” training program for New York teachers, Monroe
County Bar Association. I have no notes, transcript or recording. Press
coverage supplied. The bar association’s address is ' West Main Street,
10th Floor, Rochester, New York 14614.

• April 26, 2004: Monroe Community College seminar, discussed violence
in Rochester area. I have no notes, transcript or recording. The address of
the College is 1000 East Henrietta Road, Rochester, New York 14623.

• March 20, 2004: Workshop leader, North East Area Development, Inc.
Faith-Based Conference, workings of the court system. I have no notes,
transcript or recording.

• February 17, 2004: Rochester Rotary Speech. Notes supplied

• February 6, 2004: Rochester Drug Treatment Court Graduation Speech.
Notes supplied.

• December 30, 2003: Speech at my swearing in as District Attorney,
Rochester, New York. Notes supplied.

• October 23, 2003: District Attorney candidate debate. Voice of the Voter,
aired on WXXI and WORK. I have no notes, transcript or recording.

Press coverage supplied. Voice of the Voter is a partnership of Rochester-
area media and does not have a physical address.

• October 8, 2003: Candidate debate, Rnews (now YNN). Notes for
opening statement and press coverage supplied.

19

925

• October 1 , 2003 : Meet the Candidates luncheon, Greater Rochester
Association for Women Attorneys, remarks on qualifications to be District
Attorney. Notes and press coverage supplied.

• October 2003: Campaign spot on public television. Script supplied.

• October 2003: Candidates Night, First Bible Baptist Church, Greece, New
York. Questions I answered for the Candidates Night Book were supplied
in response to 12(a).

• September 24, 2003: Panelist, discussion of upcoming elections and issues
facing the community. Strong Auditorium, Rochester, New York. I have
no notes, transcript or recording, and 1 do not recall who sponsored the
panel.

• September 14, 2003: Candidate forum. Temple B’rith Kodesh, remarks on
crime in Monroe County. 1 have no notes, transcript or recording. Press
coverage supplied.

• August 9, 2003: Speaker at community meeting on Jefferson Avenue,
discussed community involvement and unity. I have no notes, transcript
or recording. Press coverage supplied.

• May 22, 2003: Jay Orchard Street Area Neighborhood Association forum,
support for the group’s anti-crime initiatives. I have no notes, transcript or
recording. Press coverage supplied.

• January 12, 2003: Speech at seminar on merits and morality of capital
punishment. Sponsored by State University at Brockport’s criminal justice
department and Temple B’rith Kodesh. 1 have no notes, transcript or
recording. Press coverage supplied. The address of the school is 350
New Campus Drive, Brockport, New York 14420.

• 2003: Campaign “stump speech,” given on multiple occasions. Outline
supplied.

• 2003: Speaker for Monroe County Democratic Party’s Kennedy Council.

• November 1 , 2002: Ceremony to honor Nancy Scibetta and Ellyn
Colquhoun for roles as DNA technicians and expert witnesses. I have no
notes, transcript or recording. Press coverage supplied.

• June 29, 2002: service in memory of victims of urban violence, Tyshaun
Lamar Cauldwell Foundation. 1 have no notes, transcript or recording.
Press coverage supplied.

• 2000 - 2002: Presenter on multiple occasions, “Trends at the DA’s
Office.” Outline supplied.

• Mid-1990s: Speaker before International Association of Bomb
Technicians and Investigators.

e. List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.

Over the last twenty-three years 1 have given well over a thousand interviews to
various media outlets. While I have searched my records, newspaper archives.

20

926

my memory and internet databases for these interviews, it is possible that 1 have
given others I have been unable to recall or identify. I am supplying articles and
transcripts where I have been able to locate them. In addition, I am supplying
copies of all audio and video recordings that are available to me, but there may be
additional recordings that I have not been able to obtain. To the extent I am able
to obtain any additional recordings, I will supply them to the Committee.

Gary Craig, “Obama Names DA Green to Federal Bench,” Rochester Democrat
and Chronicle, Jan. 27, 2011. Copy supplied.

Michael Zeigler, “Elian Receives 71 1/3 Years to Life for Shooting 2 Cops,”
Rochester Democrat and Chronicle, Jan. 7, 201 1 . Copy supplied.

Michael Zeigler, “Elian Found Guilty of Shooting Cops,” Rochester Democrat
and Chronicle , Dec. 15, 2010. Copy supplied.

Denise M. Champagne, “Another Tool to Fight Domestic Violence,” Rochester
Daily Record , Nov. 24, 2010. Copy supplied.

Jon Hand, Gary Craig, David Andreatta and Michael Zeigler, “FBI Inquiry
Scrutinizes Rochester Officer, Minister,” Rochester Democrat and Chronicle ,
Nov. 19,2010. Copy supplied.

Denise M. Champagne, “Monroe County Seat Still lip for Grabs?,” Rochester
Daily Record, Nov. 1 7, 20 1 0. Copy supplied.

Michael Zeigler, “Man’s Sentence Revised,” Rochester Democrat and Chronicle,
Nov. 13, 2010. Copy supplied.

Denise M. Champagne, “For Monroe County Court Judge Keenan, It’s All About
the People,” Rochester Daily Record, Nov. 1 0, 201 0. Copy supplied.

Denise M. Champagne, “New York's Persistent Felony Offender Sentencing Law
is Constitutional, Rules 2 nd Circuit,” Rochester Daily Record, Oct. 20, 2010.

Copy supplied.

“Monroe County Contractor Arrested for Failure to Pay Worker Health and
Retirement Benefits,” Targeted News Service , Sept. 9, 201 0. Copy supplied.

Michael Zeigler, “Judges, DA Differ on DWI Direction, Discretion,” Rochester
Democrat and Chronicle, Aug. 15, 2010. Copy supplied.

Michael Zeigler, “Chad Rabn Facing Charges,” Rochester Democrat and
Chronicle, July 17, 2010. Copy supplied.

21

927

Denise M. Champagne, “Suspended Irondequoit, N.Y., Police Officer Indicted for
Illegally Accessing Government Computer,” Rochester Daily Record. , July 1 6,
2010. Copy supplied.

Jon Hand, “Violence Support Group’s Retiring Founder Honored,” Rochester
Democrat and Chronicle, July 1 6, 20 1 0. Copy supplied.

Michael Zeigler, “Chad Rahn, Son of Former Greece Police Chief, Charged with
Felony,” Rochester Democrat and Chronicle , July 16, 2010. Copy supplied.

Staff, “Chad Rahn Denies Charges of Misconduct,” Messenger Post, July 1 6,
2010. Copy supplied.

Gary Craig, “Green Off to Federal Bench?,” Rochester Democrat and Chronicle ,
July 14, 2010. Copy supplied.

Denise M. Champagne, “U.S. Sen. Charles E. Schumer to Recommend Monroe
County District Attorney Michael C. Green for Judgeship,” Rochester Daily
Record , July 13, 2010. Copy supplied.

Denise M. Champagne, “Make Friends, Influence People: Lawyers and Social
Networking,” Rochester Daily Record, July 7, 201 0. Copy supplied.

Gary Craig and Meaghan M. McDermott, “Teamwork Key in Finding Greece
Murder Suspects,” Rochester Democrat and Chronicle, June 26, 20 1 0. Copy
supplied.

Denise M. Champagne, “Federal, New York State Courts at Odds Over Persistent
Felons,” Rochester Daily Record , June 25, 2010. Copy supplied.

Gary Craig, “Suspect in Greece Killings Charged with Murder,” Rochester
Democrat and Chronicle, June 25, 2010. Copy supplied.

Ben Dobbin, “Man Charged in NY Triple Slaying,” Associated Press State and
Local Wire, June 25, 2010. Copy supplied.

John Fulmer, “The Fiction Behind DNA: Proposed New York State Legislation
Finds Defenders Fighting False Perceptions,” Rochester Daily Record , June 7,
2010. Copy supplied.

“Governor Paterson Introduces Legislation to Enhance Gun Laws,” States News
Service , June 2, 2010. Copy supplied.

“Sen. Schumer Legislation to Help Develop Technology to Keep Drinkers Out of
Cars, Off Roads,” US Fed News, June 2, 2010. Copy supplied.

22

928

Jon Campbell, “Crime Shifts from NYC to Rest of State; DA Credits IMPACT
Program for Drop in Broome Rate,” Binghamton Press and Sun Bulletin , June ! ,
2010. Copy supplied.

Jon Campbell, “Crime Drops in N.Y. State,” Rochester Democrat and Chronicle ,
June 1, 2010. Copy supplied.

Brett Davidsen, “Former Monroe County Worker Indicted in Alleged Money
Stealing Scheme,” News 10 WHEC , May 5, 201 0. Copy supplied.

Michael Zeigler, “Merritt Rahn Guilty on Seven Counts,” Rochester Democrat
and Chronicle , Apr. 30, 2010. Copy supplied.

Gary Craig, “Frank Sterling Cleared in Viola Manville Slaying, Freed from
Prison,” Rochester Democrat and Chronicle, Apr. 29, 2010. Copy supplied.

Gary Craig, “Sterling Savors Freedom at Last,” Rochester Democrat and
Chronicle, Apr. 29, 2010. Copy supplied.

Brett Davidsen, “Rochester Man Freed 1 8 Years After Wrongful Murder
Conviction,” News 10 WHEC, Apr. 28, 2010. Copy supplied.

Gary Craig, “NY Man Cleared of Murder Charge after 18 Years in Prison,”
Gannett News Service, Apr. 28, 2010. Copy supplied.

Gary Craig, “‘Sterling’s Case Jumps Out at You’ in 1988 Murder Case,”
Rochester Democrat and Chronicle, Apr. 27, 2010. Copy supplied.

Kevin Fuller, “Robutrad Spotlight Turns Toward Matichyn,” Messenger Post,
Apr. 23, 2010. Copy supplied.

Jon Hand, “Green Joins Call for Feds Not to Cut Anti-Drug Funds,” Rochester
Democrat and Chronicle, Apr. 22, 2010. Copy supplied.

Joel Stashenko, “D.A.s Urge Revision of N.Y. Felony Statute after Circuit Cites
Flaws,” New York Law Journal, Apr. 8, 2010. Copy supplied.

Gary Craig, “Smith Trial Leaves Many Questions Unanswered in Robutrad
Scandal,” Rochester Democrat and Chronicle, Apr. 3, 2010. Copy supplied.

“Officials Announce Juvenile Re-Entry Initiative in Rochester,” States News
Service, Apr. 1,2010. Copy supplied.

Jon Hand and Victoria E. Freile, “2 Linked to Raiders Face Drug Charges,”
Rochester Democrat and Chronicle, Mar. 3 1, 201 0. Copy supplied.

Rikki Cason, “Three Accused in Drug Sting,” The Journal Register, Mar. 3 1 ,
2010. Copy supplied.

23

929

Jill Terreri, “Brick Incident Here Linked to Ala. Blogger,” Rochester Democrat
and Chronicle , Mar. 23, 2010. Copy supplied.

Kevin Fuller, “Robutrad Investigation Continues,” Messenger Post , Mar. 1 8,

2010. Copy supplied.

Gary Craig, “Andrew Moore’s Robutrad Charges Dismissed," Rochester
Democrat and Chronicle , Mar. 10, 2010. Copy supplied.

Josh Kraushaar, “Deja Vu All Over Again in N.Y.?,” Politico.com, Mar. 9, 2010.
Copy supplied.

“D. A. Mike Green Not Running for Congress,” ABC News 13, Mar. 8, 201 0.

Copy supplied.

“The Children’s Agenda Asks Mike Green, Monroe County District Attorney,”
The Children 's Agenda Newsletter, Spring 2010. Copy supplied.

Victoria E. Freile, “Chief Moore: Agencies’ Cooperation Key to Cutting Down on
Crime,” Rochester Democrat and Chronicle , Feb. 19, 2010. Copy supplied.

Mike Hedeen, “Police Cooperation Nets Nine Arrests,” YNN News , Feb. 1 9, 20 1 0.
Copy supplied.

Gary Craig, “Fighting Spirit Finally Set Free,” Rochester Democrat and
Chronicle , Feb. 5, 2010. Copy supplied.

Gary Craig, “Innocence Project: DNA Exonerates Man in ‘76 Rape Conviction,”
Rochester Democrat and Chronicle, Feb. 4, 201 0. Copy supplied.

Jessica Spies, “DA’s Greece Police Investigation Wraps Up,” Messenger Post,
Jan. 28, 2010. Copy supplied.

Gary Craig, “Robutrad Scandal Details Emerge,” Rochester Democrat and
Chronicle, Jan. 23, 2010. Copy supplied.

Jessica Spies, “DA: No Criminal Conduct in Greece Police-Shooting Case,”
Greece Post, Jan. 14, 2010. Copy supplied.

Gary Craig, “Standoff Defendant Had Mental Issues, Lawyer Says,” Rochester
Democrat and Chronicle, lan. 12,2010. Copy supplied.

Elizabeth Stull, “Rochester-Area Practitioners Weigh in on the Most Important
Decisions of the Past 1 0 Y ears,” Rochester Daily Record, Jan. 5, 20 1 0. Copy
supplied.

Gary Craig, “N.Y.: Lab Tests Botched,” Rochester Democrat and Chronicle, Dec.
29, 2009. Copy supplied.

24

930

Gary Craig, “Monroe County Crime Lab Errors Examined in State Report,”
Rochester Democrat and Chronicle, Dec. 28, 2009. Copy supplied.

Bennett J. Loudon, “Separate Trials Likely in Police Shootings,” Rochester
Democrat and Chronicle, Dec. 24, 2009. Copy supplied.

Gary Craig, Coke’ Residue at Issue,” Rochester Democrat and Chronicle , Dec.
23, 2009. Copy supplied.

Meaghan M. McDermott, “Police Choices Limited,” Rochester Democrat and
Chronicle, Dec. 22, 2009. Copy supplied.

Linda Quinlan, “Morelle Sponsors Law to Require DNA Sampling in Felony
Arrests,” Messenger Post, Dec. 1 6, 2009. Copy supplied.

Claudia Vargas, “Grand Jury Indicts Man in Shooting of 2 Officers,” Rochester
Democrat and Chronicle, Dec. 8, 2009. Copy supplied.

“Attorney General Cuomo Announces 21 Indicted in Connection with Bronx-to-
Upstate Cocaine Pipeline,” States News Service , Dec. 3, 2009. Copy supplied.

Marcia Morphy, “Transforming Crime Analysis,” Research a I RJT, Fall/Winter
2009. Copy supplied.

“Arm In Arm With Anti-Crime Leaders, Gillibrand and McCarthy Announce
Federal Measure to Crackdown on Illegal Guns,” Sen. Kirsten E. Gillibrand (D-
NY) News Release via Congressional Documents and Publications, Nov. 24,

2009. Copy supplied.

Gary Craig, “Prosecutors Not Liable for Holding Tests,” Rochester Democrat and
Chronicle, Nov. 21, 2009. Copy supplied.

Gary Craig, “Monroe County Court Holds Trial without Defendant, Lawyer,”
Rochester Democrat and Chronicle, Nov. 19,2009. Copy supplied.

Robert Barlow, “Penfteld Councilman Fighls to Clear His Name,” Penfteld Post ,
Nov. 17,2009. Copy supplied.

Cara Matthews, “State Seeks to Close F,ar]y-Release Loophole for Violent
Felons,” Westchester Journal News, Nov. 9, 2009. Copy supplied.

Cara Matthews, “Glitch Gives Some Felons Chance of Parole,” Rochester
Democrat and Chronicle, Nov. 7, 2009. Copy supplied.

“On Anniversary of Jenna Grieshabers Murder, Governor Paterson Calls On
Legislature to Close Loophole,” States News Service, Nov. 6, 2009. Copy
supplied.

25

931

Gary Craig, “Judge Halts Indictment against Ex-Greece Cop,” Rochester
Democrat and Chronicle, Nov. 3, 2009. Copy supplied.

Staff, “Jurors Embraced Defense Argument,” Rochester Democrat and Chronicle,
Oct. 24, 2009. Copy supplied.

Gary Craig and Stephanie Veale, “Judge Dismisses Robutrad Charge,” Rochester
Democrat and Chronicle, Oct. 20, 2009. Copy supplied.

Elizabeth Stull, “Rivera Receives Maximum in Shooting of Rochester Police
Officer Anthony DiPonzio,” Rochester Daily Record, Oct. 19, 2009. Copy
supplied.

Gary Craig, “Felony Charge Dismissed against GOP Official in Robutrad Case,”
Rochester Democrat and Chronicle, Oct. 1 9, 2009. Copy supplied

“Fighting Child Abuse and Exploitation” Radio Interview, 1370 Connection on
WXX1 , October 19, 2009. Audio recording supplied.

Claudia Vargas, “Rivera Runs Out of Second Chances,” Rochester Democrat and
Chronicle , Oct. 1 7, 2009. Copy supplied.

Claudia Vargas, “Rivera Gets Maximum for Shooting DiPonzio,” Rochester
Democrat and Chronicle, Oct. 16, 2009. Copy supplied.

Jessica Spies, “Teen Faces 10 Years in Cop-Shooting,” Greece Post, Oct. 16,
2009. Copy supplied.

Jill Ten-eri, “Crime Lab Will Improve Analysis,” Rochester Democrat and
Chronicle, Oct. 14, 2009. Copy supplied.

Claudia Vargas, “Diponzio Shooting Highlights Rise in Teens with Illegal
Firearms,” Rochester Democrat and Chronicle, Oct. 1 1 , 2009. Copy supplied.

Cara Matthews, “Judges Get Leeway in Drug Cases: Can Choose Treatment Over
Prison,” The Ithaca Journal , Oct. 9, 2009. Copy supplied.

Elizabeth Stull, “Former Monroe County Deputy Chief Executive James P. Smith
Indicted,” Rochester Daily Record, Oct. 8, 2009. Copy supplied.

Gary Craig, “Robutrad Case Ensnares Smith,” Rochester Democrat and
Chronicle, Oct. 8, 2009. Copy supplied.

Dan Goldman, “Former Monroe County Deputy Executive Indicted in Robutrad
Scandal,” Messenger Post, Oct. 7, 2009. Copy supplied.

Gary Craig, “Chief Rahn Accused of Thwarting Police Work,” Rochester
Democrat and Chronicle, Oct. 7, 2009. Copy supplied.

26

932

Gary Craig, “1 1 New Counts against Rahn in Court,” Rochester Democrat and
Chronicle, Oct, 7, 2009. Copy supplied.

Gary Craig, “Former Deputy County Executive Charged with Official
Misconduct,” Rochester Democrat and Chronicle , Oct. 7, 2009. Copy supplied.

Elizabeth Stull, “Monroe County District Attorney Green: Work is Never Done,”
Rochester Daily Record, Oct. 5, 2009. Copy supplied.

Michael Zeigler, “Courtroom Sketches to Computer Screens,” Rochester
Democrat and Chronicle , Oct. 4, 2009. Copy supplied.

Tyler Schey, “Students Benefit from Jesuit Tradition,” The Dolphin [LeMoyne
College publication] , Oct. 1,2009. Copy supplied.

David Andreatta, “Rivera Found Guilty,” Rochester Democrat and Chronicle,
Sept. 5, 2009. Copy supplied.

Claudia Vargas, “Rivera Set to Take Stand at Trial,” Rochester Democrat and
Chronicle , Sept. 3, 2009. Copy supplied.

Jessica Spies, “Wounded Officer DiPonzio Takes the Stand,” Daily Messenger ,
Aug. 31, 2009. Copy supplied.

Claudia Vargas, “‘Diverse’ Panel of Jurors Seated in Rivera’s Trial,” Rochester
Democrat and Chronicle , Aug. 28, 2009. Copy supplied.

Claudia Vargas, “Arson Arrests Up in Rochester this Year,” Rochester Democrat
and Chronicle, Aug. 28, 2009. Copy supplied.

Michael Zeigler and Claudia Vargas, “7 Women, 5 Men Seated as Jurors in
Rivera’s Trial,” Rochester Democrat and Chronicle, Aug. 27, 2009. Copy
supplied.

Gary Craig, “Charges Over ‘05 Accident Baffle Family,” Rochester Democrat
and Chronicle, Aug. 26, 2009. Copy supplied.

Gary Craig, “Ball Was to be Key Witness in Scott’s Trial,” Rochester Democrat
and Chronicle, Aug. 25, 2009. Copy supplied.

Meaghan M. McDermott and Gary Craig, “Ex-Greecc Cop Tied to Fatal Crash
Report,” Rochester Democrat and Chronicle, Aug. 25, 2009. Copy supplied.

Jessica Spies, “Former Greece Police Sergeant Charged with Falsifying
Toxicology Report in Fatal Crash,” Greece Post, Aug. 24, 2009. Copy supplied.

Michael Zeigler, “Teen’s Trial Set to Begin,” Rochester Democrat and Chronicle,
Aug. 24, 2009. Copy supplied.

27

933

Gary Craig and Meaghan M. McDermott, “Fired Greece Officer Accused of
Falsifying Records from Fatal Crash,” Rochester Democrat and Chronicle , Aug.
24, 2009. Copy supplied.

Michael Zeigler, “Cameras Allowed at Rivera Trial,” Rochester Democrat and
Chronicle , Aug. 20, 2009. Copy supplied.

Gary Craig, “Rahn Indictment Related to Hiring,” Rochester Democrat and
Chronicle , Aug. 20, 2009. Copy supplied.

Claudia Vargas, “Police Combine Forces for DWI Crackdown,” Rochester
Democrat and Chronicle , Aug. 19, 2009. Copy supplied.

Staff, “Suspended Greece Police Chief Indicted,” Greece Post, Aug. 1 9, 2009.
Copy supplied.

Michael Zeigler, “Homicide Charge for Mother in 2008 Fire,” Rochester
Democrat and Chronicle, Aug. 15,2009. Copy supplied.

Michael Zeigler, “Mom Who Allegedly Left Children Alone before Fatal Fire
Charged,” Rochester Democrat & Chronicle, Aug. 1 4, 2009. Copy supplied.

Denise-Marie Santiago, “Is Teenager’s Act a Plea for Help, or a Crime?,”
Rochester Democrat and Chronicle, Aug. 14, 2009. Copy supplied.

Leah George, “Defense Questions Whether Garcia Jurors Can be Fair,” YNN
News, Aug. 14, 2009. Copy supplied.

Gary Craig, “Teen Charged After Suicide Attempt,” Rochester Democrat and
Chronicle, Aug. 6, 2009. Copy supplied.

Scott Patterson, “Search Questioned in Tyquan Rivera Case,” YNN News, Aug. 3,
2009. Copy supplied.

“Governor Paterson Announces Operation Impact Grants for Upstate New York
and Long Island,” States News Service, Aug. 3, 2009. Copy supplied.

Cara Matthews, “Cuomo Announces Progress in Wind-Farm Probe,”
Poughkeepsie Journal, July 29, 2009. Copy supplied.

“Attorney General Cuomo Announces New Ethics Code Adopted by Wind
Industry Companies Across NY,” Targeted News Service, July 29, 2009. Copy
supplied.

Stephanie Veale, “Cuomo Targets Toy Guns,” Rochester Democrat and
Chronicle, July 29, 2009. Copy supplied.

28

934

Denise M. Champagne, “Stores Told to Stop Selling Guns that Look Real,”
Messenger Post , July 28, 2009. Copy supplied.

Michael Zeigler, “Investigator Says Rivera’s Mother Consented to Search,”
Rochester Democrat and Chronicle , July 21, 2009. Copy supplied.

Staff, “The Daily Record News Briefs: July 1 6, 2009,” Rochester Daily Record,
July 16, 2009. Copy supplied.

Elizabeth Stull, “‘Miranda’ Warnings Could Change,” Rochester Daily Record,
July 1 6, 2009. Copy supplied.

Gary Craig, “Joseph’s Hiring Scrutinized,” Rochester Democrat and Chronicle ,
July 16, 2009. Copy supplied.

“Senate Leaders Fight to Fix Dangerous Provision that Would Hide Criminal
Records of Drug Dealers,” US State News, July 16, 2009. Copy supplied.

Jessica Spies, “Greece Police Sergeant Faces Felony Charges,” Greece Post, July
15,2009. Copy supplied.

Meaghan M. McDermott and Gary Craig, “Greece Cop Faces Criminal Charges,”
Rochester Democrat and Chronicle, July 15, 2009. Copy supplied.

Michael Zeigler, “Pignato to Serve 2 Years for Sex Bribe,” Rochester Democrat
and Chronicle, July 9, 2009. Copy supplied.

Jessica Spies, “Ex-Greece Cop Prison-Bound for Bribery, Coercion,” Greece
Post, July 8, 2009. Copy supplied.

Elizabeth Stull, “New York’s New Rules of Professional Conduct Highlight Need
for Honesty, Candor,” Rochester Daily Record, July 7, 2009. Copy supplied.

Stephanie Veale, ‘“Johns’ Will Face Tougher Sentences,” Rochester Democrat
and Chronicle , July 7, 2009. Copy supplied.

“Tough Penalties for Rochester Prostitute Clients,” Associated Press Stale and
Local Wire, July 7, 2009. Copy supplied.

“State Sen. Farley Fights to Fix Provision that Would Hide Criminal Records of
Drug Dealers,” US State News, July 6, 2009. Copy supplied.

Gary McLendon, “District Attorney Backs City Basketball League,” Rochester
Democrat and Chronicle, July 5, 2009. Copy supplied.

“The Daily Record News Briefs: July 3, 2009,” Rochester Daily Record , July 3,
2009. Copy supplied.

29

935

Michael Zeigler, “Assistant District Attorney Censured for Lying,” Rochester
Democrat and Chronicle , July 3, 2009. Copy supplied.

Gary Craig, “Lawyer Says Teen Ran toward Scott,” Rochester Democrat and
Chronicle, June 24, 2009. Copy supplied.

Sean Dobbin, “Payroll Company, Owner Accused of Scam,” Rochester Democrat
and Chronicle, June 24, 2009. Copy supplied.

Gary Craig, “Democrats Want Sheriff to Explain Role in Inquiry,” Rochester
Democrat and Chronicle , June 20, 2009. Copy supplied.

Gary Craig, “Fraud Saga Detailed,” Rochester Democrat and Chronicle, June 19,
2009. Copy supplied.

Dan Higgins, “Fresh Look at Bait-and-Switch Mortgage Cases,” Albany Times-
Union, June 18, 2009. Copy supplied.

Elizabeth Stull, “Proposed Jury Study ‘Well Received’ by the Administrative
Board of the Courts of New York,” Rochester Daily Record, June 1 7, 2009. Copy
supplied.

Jessica Spies, “Officer Heard ‘Shots Fired, Officer Down’,” Greece Post, June 10,
2009. Copy supplied.

Gary Craig, “DA Probe into Greece Police Nearly Over,” Rochester Democrat
and Chronicle, June 9, 2009. Copy supplied.

Diana Palotas, “Jury Finds Pignato Guilty on All Counts,” YNN News, June 8,
2009. Copy supplied.

Joseph Spector, “Critics Say Drug Law Handicaps Employers,” Rochester
Democrat and Chronicle , May 30, 2009. Copy supplied.

Nancy Dooling, “District Attorneys Attack Drug Law,” Binghamton Press and
Sun Bulletin, May 28, 2009. Copy supplied.

Michael Leess, “Hearing for Officer’s Alleged Shooter Delayed,” Greece Post,
May 27, 2009. Copy supplied.

Michael Zeigler, “Rivera’s Hearing in DiPonzio Shooting Delayed,” Rochester
Democrat and Chronicle, May 27, 2009. Copy supplied.

Elizabeth Stull, “‘Weaver’ Decision Hailed by NYCLU: States Reaching Varied
Conclusions on the Issue,” Rochester Daily Record, May 18, 2009. Copy
supplied.

30

936

Diana Palotas, “Investigations into Greece Police Underway,’’ YNN News, May
13, 2009. Copy supplied.

Michael Zeigler, “Disgraced Greece Cop Sent to Prison,” Rochester Democrat
and Chronicle, May 13, 2009. Copy supplied.

Claudia Vargas, “Breaking Grip of Gangs,” Rochester Democrat and Chronicle,
May 10,2009. Copy supplied.

Ernst Lamothe, Jr. and Gary McLendon, “Mack Found Guilty in Shaw Death,”
Rochester Democrat and Chronicle, May 9, 2009. Copy supplied.

Jessica Spies, “DA: Cop Solicited Bribe While in Uniform,” Greece Post, May 6,
2009. Copy supplied.

Staff, “Monroe County DA Subpoenas Tapes of Greece Police Chief,” Greece
Post, Apr. 23, 2009. Copy supplied.

Claudia Vargas, “Police Nab Alleged City Gang Members,” Rochester Democrat
and Chronicle, Apr. 29, 2009. Copy supplied.

Gary Craig and Meaghan M. McDermott, “Town Suspects Shredding,” Rochester
Democrat and Chronicle, Apr. 28, 2009. Copy supplied.

Gary Craig, “Top Greece Cop Suspended,” Rochester Democrat and Chronicle,
Apr. 27, 2009. Copy supplied.

Michael Zeigler, “Scott Faces Lesser Charge in Shooting,” Rochester Democrat
and Chronicle, Apr. 1 8, 2009. Copy supplied.

“Flow Prosecutors Deal with Drug Law Reform” Radio Interview, 1370
Connection on WXXI, April 14, 2009. Audio recording supplied.

Gary Craig, “County Probe Continues,” Rochester Democrat and Chronicle , Apr.
12,2009. Copy supplied.

Elizabeth Stull, "New York State Attorney General’s Office Unveils Revamped
Web Site,” Rochester Daily Record, Apr. 8, 2009. Copy supplied.

Claudia Vargas, “Sunlight Web Site Gets Easier to Use,” Rochester Democrat
and Chronicle, Apr. 8, 2009. Copy supplied.

Claudia Vargas, “Greece Shooting Details Released,” Rochester Democrat and
Chronicle, Apr. 7, 2009. Copy supplied.

Rachel Hollis, “AG Announces Sunlight 2.0 Web Site,” YNN News, Apr. 7, 2009.
Copy supplied.

31

937

Gary Craig, Justina Wang and Alan Morrell, “Greece Resident Accused of Killing
Teenager,” Rochester Democrat and Chronicle, Apr. 5, 2009. Copy supplied.

Elizabeth Stull, “Prosecutors in N.Y. Oppose Rockefeller Reforms,” Rochester
Daily Record , Mar. 3 1 , 2009. Copy supplied.

Michael Zeigler, “Softball Player Rejects Jury Trial,” Rochester Democrat and
Chronicle, Mar. 30, 2009. Copy supplied.

Gary Craig, “No Arrests Made Yet in Child’s August Death,” Rochester
Democrat and Chronicle, Mar. 29, 2009. Copy supplied.

Jeremy W. Peters, "Albany Reaches Deal to Repeal ‘70s Drug Laws,” New York
Times , Mar. 26, 2009. Copy supplied.

Jessica Spies, “Case Puts Spotlight on Greece Police Force,” Greece Post, Mar.

19, 2009. Copy supplied.

Gary Craig, “Woman Sued Town After Arrest in 2000,” Rochester Democrat and
Chronicle, Mar. 18,2009. Copy supplied.

Gary Craig, “Inquiries Shadow Suburb’s Officers,” Rochester Democrat and
Chronicle, Mat. 18,2009. Copy supplied.

Michael Zeigler, “Greece Sergeant Guilty as Charged,” Rochester Democrat and
Chronicle, Mar. 17,2009. Copy supplied.

Scott Fairbanks, “NYCLU Wants Changes to Drug Sentences,” YNN News, Mar.
12, 2009. Copy supplied.

Elizabeth Stull, “New York Civil Liberties Union: Drug Laws Discriminate,”
Rochester Daily Record, Mat. 12,2009. Copy supplied.

Amy Young, “Rochester to Get More Funds to Fight Crime,” YNN News, Mar. 9,
2009. Copy supplied.

Jeremy W. Peters, “Assembly Votes to End Rockefeller Drug Laws,” New York
Times, Mar. 5, 2009. Copy supplied.

“Monroe County Contractors Arrested on Charges of Fraudulently Misclassifying
Employees,” States News Service, Feb. 26, 2009. Copy supplied.

Bennett J. Loudon, “Dayton St. Residents Get Some Attention,” Rochester
Democrat and Chronicle, Feb. 21, 2009. Copy supplied.

Bennett J. Loudon, “Grand Jury Indicts Garcia,” Rochester Democrat and
Chronicle, Feb. 21, 2009. Copy supplied.

32

938

Michael Zeigler, “Not Guilty Plea in DiPonzio Shooting,” Rochester Democrat
and Chronicle, Feb. 1 8, 2009. Copy supplied.

Erica Bryant and Stephanie Veale, “School’s Out, Parents at Work, Where to
Go?,” Rochester Democrat and Chronicle , Feb. 15, 2009. Copy supplied.

Gary Craig, “Stiffer Charges Examined,” Rochester Democrat and Chronicle,

Feb. 15, 2009. Copy supplied.

Telephone interview to author Joshua Logan Pennel on Feb. 9, 2009, quoted in
Pennel’s article, Comment: The End of Indeterminate Sentencing in New York:

The Death and Rebirth of Rehabilitation, 58 Buffalo L.Rev. 507 (Apr. 2010).

Copy supplied.

Bennett J. Loudon, “Grand Jury Indicts Teenager Accused of Shooting Officer,”
Rochester Democrat and Chronicle, Feb. 7, 2009. Copy supplied.

Leah George, “Assemblyman Hopes to Change Juvenile Punishment,” YNN
News , Feb. 6, 2009. Copy supplied.

Elizabeth Stull, “N.Y. State Commission Releases Long-Awaited Sentencing
Recommendations,” Rochester Daily Record, Feb. 4, 2009. Copy supplied.

Joel Stashenko, “Drug Treatment Recommended for Addicted, Nonviolent
Cases,” New York Law Journal, Feb. 4, 2009. Copy supplied.

Gary Craig, “Water Board Diversity Urged,” Rochester Democrat and Chronicle,
Jan. 13,2009. Copy supplied.

Joel Stashenko, “Paterson Supports Reform of Drug Statutes and F.xpanded
Treatment,” New York Law Journal, Jan. 8, 2009. Copy supplied.

Gary McLendon, “Anti-Crime Initiative in City Keeps Funding,” Rochester
Democrat and Chronicle, Dec. 1 6, 2008. Copy supplied.

Casey J. Bortnick, “Ex-Funeral Director Convicted of Body Stealing,” YNN News,
Dec. 12, 2008. Copy supplied.

Claudia Vargas, “3-Year-Old Dies from Fire-Related Injuries,” Rochester
Democrat and Chronicle, Dec. 10,2008. Copy supplied.

Elizabeth Stull, “Monroe County DA Michael C. Green Appoints First Woman as
First ADA,” Rochester Daily Record , Dec. 8, 2008. Copy supplied.

Michael Zeigler, “DA Names First Woman to be Top Assistant,” Rochester
Democrat and Chronicle, Dec. 6, 2008. Copy supplied.

33

939

Claudia Vargas and Victoria E. Freile, “15 Charged with Taking Funds,”
Rochester Democrat and Chronicle , Dec. 5, 2008. Copy supplied.

Elizabeth Stull, “Crime Fighters Collaborate at Monroe Crime Analysis Center,”
Rochester Daily Record, Nov. 25, 2008. Copy supplied.

Claudia Vargas, “Crime Analysis Center Unveiled in Rochester,” Rochester
Democrat and Chronicle, Nov. 18,2008. Copy supplied.

“Attorney General Cuomo’s Statewide Community Partnership Initiative Returns
to Monroe County,” US States News, Nov. 1 8, 2008. Copy supplied.

“State-of-the-Art Crime Analysis Center Opens in Monroe County,” US States
News, Nov. 1 7, 2008. Copy supplied.

Gary Craig, “Killer Shawcross Dies at 63,” Rochester Democrat and Chronicle,
Nov. 12,2008. Copy supplied.

Claudia Vargas and Victoria E. Freile, “New Arrest in Stabbing Case,” Rochester
Democrat and Chronicle, Nov. 7, 2008. Copy supplied.

Dipka Bhambhani, “New York Attorney General Issues Code of Ethics for Wind
Developers in Response to Complaints,” Global Power Report, Nov. 6, 2008.
Copy supplied.

Dipka Bhambhani, “N.Y. Wind Companies Sign Ethics Code after Probe by State
Attorney General,” Inside Energy with Federal Lands, Nov. 3, 2008. Copy
supplied.

Joseph Spector, “Wind Energy Development to Face Tougher Scrutiny,”
Westchester Journal News, Oct. 31 , 2008. Copy supplied.

“Attorney General Cuomo Establishes Code of Conduct for Wind Energy
Operating in New York,” US Slates News, Oct. 30, 2008. Copy supplied.

Elizabeth Stull, “Monroe County’s First Assistant District Attorney Ken Hyland
Announces Resignation,” Rochester Daily Record, Oct. 24, 2008. Copy supplied.

Michael Zeigler, “No. 2 Prosecutor to Retire in December,” Rochester Democrat
and Chronicle, Oct. 24, 2008. Copy supplied.

Justina Wang, “Drug Prevention Effort Hopes to Reach Youths,” Rochester
Democrat and Chronicle, Oct. 24, 2008. Copy supplied.

Alan Morrell, “Clark Calls for Sensitivity,” Rochester Democrat and Chronicle,
Oct. 4, 2008. Copy supplied.

34

940

“Too Little Progress,” Rochester Democrat and Chronicle, Sept. 30, 2008. Copy
supplied.

Elizabeth Stull, “New York Targets Insurance Fraud Statewide,” Rochester Daily
Record , Sept. 24, 2008. Copy supplied.

“Labor Department Announces Crackdown on Unemployment Insurance Fraud in
Western New York, Finger Lakes Regions,” US States News, Sept. 23, 2008.

Copy supplied.

Chris Mueller, “Group Says More Pre-K Will Result in Less Crime,” The Culvert
Chronicles, Sept. 1 1-17, 2008. Copy supplied.

Michael Zeigler, “Second Assistant DA Retires After 28 Years,” Rochester
Democrat and Chronicle, Aug. 31, 2008. Copy supplied.

Staff, “News Briefs,” Rochester Daily Record, Aug. 29, 2008. Copy supplied.

Jill Terreri, “Party Asks for Payoff Inquiry,” Rochester Democrat and Chronicle,
Aug. 19, 2008. Copy supplied.

Eric Walter, “Forfeited Funds Benefiting the Rochester Community,” Rochester
Daily Record, Aug. 13,2008. Copy supplied.

Staff, “The Daily Record News Briefs,” Rochester Daily Record, July 30, 2008.
Copy supplied.

Staff, “News Beat,” Rochester Democrat and Chronicle, July 29, 2008. Copy
supplied.

Michael Zeigler, “Teen Sentenced in Slaying,” Rochester Democrat and
Chronicle, July 24, 2008. Copy supplied.

Seth Voorhees, “Softball Player’s Death Ruled a Homicide,” YNN News, July 3,
2008. Copy supplied.

Michael Zeigler, “City Man Gets 50 Years for Murder,” Rochester Democrat and
Chronicle, July 2, 2008. Copy supplied.

Gary McLendon, “Project Keeps Kids off Streets,” Rochester Democrat and
Chronicle, July 2, 2008. Copy supplied.

Yevette Collins, "More Charges Likely in Ballplayer’s Death,” YNN News, July 1,
2008. Copy supplied.

Staff, “Man Gets 50 Years for Murder of Store Clerk,” YNN News, July 1, 2008.
Copy supplied.

35

941

Michael Zeigler, "Woods Convicted in Murder,” Rochester Democrat and
Chronicle , June 28, 2008. Copy supplied.

Staff, “The Daily Record News Briefs,” Rochester Daily Record , June 27, 2008.
Copy supplied.

Michael Zeigler, “DA, Sheriff Want Moore to Die in Prison,” Rochester
Democrat and Chronicle, June 26, 2008. Copy supplied.

Scott Fairbanks, “Petition to Deny James Moore Parole,” YNN News, June 25,
2008. Copy supplied.

Staff, “DA, State Police Probe Crash Linked to Sgt.,” YNN News , June 25, 2008.
Copy supplied.

Tom Keyser, “Lessons in Ending Crippling Violence,” Albany Times Union , June
22, 2008. Copy supplied.

Michael Zeigler, “Man, 20, Guilty of Murder in Store Robbery,” Rochester
Democrat and Chronicle, June 1 8, 2008. Copy supplied.

Michael Zeigler, “City Man’s Murder Conviction Overturned,” Rochester
Democrat and Chronicle, June 7, 2008. Copy supplied.

Michael Zeigler, “Defendants’ Remarks Ruled OK in Trials for 2007 Slaying,”
Rochester Democrat and Chronicle, June 5, 2008. Copy supplied.

Claudia Vargas, “City’s Latest Homicide Case Submitted to DA,” Rochester
Democrat and Chronicle, May 13, 2008. Copy supplied.

Linda Quinlan, “Three Irondequoit DPW Employees Suspended,” Messenger
Post, May 6, 2008. Copy supplied.

Jill Terreri, “Dems Quiz Water Authority,” Rochester Democrat and Chronicle,
May 3, 2008. Copy supplied.

Claudia Vargas, “‘Thug’ Gets Max in Activist Slaying,” Rochester Democrat and
Chronicle, Apr. 30, 2008. Copy supplied.

“Teen Gets Prison for Robbery that Left Rochester Man Dead,” Associated Press
State and Local Wire, Apr. 29, 2008. Copy supplied.

Gary Craig, “Brothers Sue DA’s Office,” Rochester Democrat and Chronicle,
Apr. 20, 2008. Copy supplied.

James Goodman, “Rural Areas Strive to Keep the Peace,” Rochester Democrat
and Chronicle, Apr. 16, 2008. Copy supplied.

36

942

Brian Sharp, “Hopeful View of City’s Future,” Rochester Democrat and
Chronicle , Apr, 8, 2008. Copy supplied.

Jill Terreri, “County Official Put on Paid Leave,” Rochester Democrat and
Chronicle , Apr. 5, 2008. Copy supplied.

Claudia Vargas, “Four-Day Window to Erase the Slate,” Rochester Democrat and
Chronicle, Mar. 18,2008. Copy supplied.

James Goodman, “Cramped Crime Lab Still Far Cry from ‘CSI’,” Rochester
Democrat and Chronicle, Mar. 3, 2008. Copy supplied.

Alan Morrell, “Project Uplift Lends a Hand,” Rochester Democrat and Chronicle ,
Feb. 23, 2008. Copy supplied.

Alan Morrell and Stephanie Veale, “Wrong Place, Wrong Time, Teens’ Families,
Friends Say,” Rochester Democrat and Chronicle, Feb. 22, 2008. Copy supplied.

Emst Lamothe, Jr., “Rochester Seeks Solution to Violence,” Rochester Democrat
and Chronicle, Feb. 19, 2008. Copy supplied.

Gary Craig, “Ruling Criticizes DA’s Office,” Rochester Democrat and Chronicle,
Feb. 12,2008. Copy supplied.

Meaghan M. McDermott, “Official: Widen Inquiry in Greece,” Rochester
Democrat and Chronicle , Feb. 6, 2008. Copy supplied.

“Criminal Justice Initiatives Receive Bipartisan Support,” US Stales News, Jan.
24, 2008. Copy supplied.

Joseph Spector, Brian Sharp and Jill Terreri, “Spitzer Seeks $I1M More for
Rochester,” Rochester Democrat and Chronicle, Jan. 23, 2008. Copy supplied.

Jill Terreri and Michael Zeigler, “Stanwix Pleads Not Guilty,” Rochester
Democrat and Chronicle, Jan. 22, 2008. Copy supplied.

Jessica Pierce, “The Unraveling of a Conviction,” Daily Messenger , Jan. 20,

2008. Copy supplied.

Jessica Pierce, “Monroe County Cases See Ripples from Rulings,” Daily
Messenger, Jan. 20, 2008. Copy supplied.

Elizabeth Stull, “Lively Forum on Monroe County’s Public Defender Selection,”
Rochester Daily Record, Jan. 12,2008. Copy supplied.

Stephanie Veale, “Critics: No Politics in Public Defender Choice,” Rochester
Democrat and Chronicle, Jan. 1 1, 2008. Copy supplied.

37

943

Alan Morrell, “City Crime Drops by !2%,” Rochester Democrat and Chronicle,
Jan. 9, 2008. Copy supplied.

Meaghan M. McDermott, “Prosecutor to Investigate Victor Election,” Rochester
Democrat and Chronicle, Jan. 4, 2008. Copy supplied.

Jessica Pierce, “Special Prosecutor to Investigate Alleged Election Day
Intimidation,” Daily Messenger, Jan. 3, 2008. Copy supplied.

Tori Uthe, “Parole Rates for Violent Felons on the Rise,” Webster Post, Dec. 28,
2007. Copy supplied.

Alan Morrell, “Zero Tolerance Expands Court Docket, Packs Jails,” Rochester
Democrat and Chronicle, Dec. 17, 2007. Copy supplied.

Stephanie Veale, “DA Himself Will Handle Robbery-Homicide Case,” Rochester
Democrat and Chronicle, Dec. 6, 2007. Copy supplied.

Diana Palotas, “Store Murder Suspect Tried Before,” YNN News, Dec. 5, 2007.
Copy supplied.

Sean Dobbin, “DA Offers Bad-Chcck Program,” Rochester Democrat and
Chronicle, Nov. 15,2007. Copy supplied.

“Monroe District Attorney Green, State Tax Department Announce New Focus
on Tax Fraud,” US States News, Nov. 1 4, 2007. Copy supplied.

Rachel Barnhart, “Infant Deaths Related to Co-Sleeping go Unnoticed,” News 13
ABC, Nov. 11,2007. Copy supplied.

Claudia Vargas, “Unsolved Cases,” Rochester Democrat and Chronicle, Nov. 9,
2007. Copy supplied.

Gary Craig, “Resounding Wins for Green, Brooks,” Rochester Democrat and
Chronicle, Nov. 7, 2007. Copy supplied.

Jessica Gaspar, “Green Wins Another Term as DA,” Messenger Post, Nov. 7,
2007. Copy supplied.

Gary Craig, “Wamey Case Disputed in DA’s Race,” Rochester Democrat and
Chronicle, Nov. 1,2007. Copy supplied.

Michael Zeigler, “The Defense Rests: Nowak Retiring from County Office,”
Rochester Democrat and Chronicle, Nov. 1,2007. Copy supplied.

Gary Craig, “Two Lob Numbers in DA Contest,” Rochester Democrat and
Chronicle, Oct. 29, 2007. Copy supplied.

38

944

Gary Craig, “Green Endeavors to Help Victims’ Family Members,” Rochester
Democrat and Chronicle , Oct. 29, 2007. Copy supplied.

Gary Craig, “Green, Briggs Cite Experience, Track Records,” Rochester
Democrat and Chronicle, Oct. 28, 2007. Copy supplied.

“Vying for Top Spots in Government, Law,” Rochester Democrat and Chronicle ,
Oct. 28, 2007. Copy supplied.

Will Astor, “The Greater Rochester Awards: I.C. Shah,” Rochester Business
Journal , Oct. 19, 2007. Copy supplied.

Gary Craig, “Justice Served in Abuse Cases?,” Rochester Democrat and
Chronicle, Oct. 19,2007. Copy supplied.

Michael Zeigler and Brian Sharp, “Grand Jury: No Hate Crimes,” Rochester
Democrat and Chronicle, Oct. 18,2007. Copy supplied.

Greg Livadas, “Trials Atypical in Local DWls,” Rochester Democrat and
Chronicle, Oct. 14,2007. Copy supplied.

Bob Smith, “Seeking Re-Election” Radio Interview, 1370 Connection on WXX1 ,
Oct. 1 1, 2007. Audio recording supplied.

Gary Craig, “DA, Challenger Debate Office Turnover at Forum,” Rochester
Democrat and Chronicle, Oct. 10, 2007. Copy supplied.

Helen Kennedy, “Smokin’ Out Kid Slayer. DNA Test from Tossed Cigarette May
Nail 1 976’s ‘Alphabet Killer’,” New York Daily News, Oct. 4, 2007. Copy
supplied.

Cammy Clark, “Keys Resident Suspected in Cold 1976 Murder Case.” The Miami
Herald, Oct. 4, 2007. Copy supplied.

Michael Zeigler, “Arrest in Girl’s 1976 Death,” Rochester Democrat and
Chronicle, Oct. 4, 2007. Copy supplied.

Gary Craig, “Ruling May Let Convict Go Free,” Rochester Democrat and
Chronicle, Oct. 3, 2007. Copy supplied.

Michael Zeigler, “Man Gets Minimum for Assaulting Police Officer,” Rochester
Democrat and Chronicle, Oct. 2, 2007. Copy supplied.

Gary Craig, “D.A. Conviction Rate Debated," Rochester Democrat and
Chronicle, Sept. 24, 2007. Copy supplied.

Gary Craig, “Driving Justice,” Rochester Democrat and Chronicle , Sept. 23,

2007. Copy supplied.

39

945

Taia E. Buck, “Upstate ‘Guns, Gangs and Drags Initiative’ Results in 87 Arrests,”
Rochester Daily Record, Sept. 14,2007. Copy supplied.

Brian Sharp, “Police Face Allegations on Assault Response,” Rochester
Democrat and Chronicle , Sept. 14, 2007. Copy supplied.

Claudia Vargas, “Boy, 1 5, Charged in City Homicide,” Rochester Democrat and
Chronicle, Sept. 14,2007. Copy supplied.

Casey Bortnick, “Green’s Conviction Rate Challenged,” YNN News, Sept. 12,
2007. Copy supplied.

James Goodman, “Monroe Accused of Misusing S2.5M,” Rochester Democrat
and Chronicle, Sept. 11, 2007. Copy supplied.

Danielle Derringer, “Rochester Business Briefs,” Rochester Daily Record, Sept.

7, 2007. Copy supplied.

Claudia Vargas, “87 Charged in Drag Bust,” Rochester Democrat and Chronicle,
Sept. 7, 2007. Copy supplied.

“Attorney General Cuomo Announces Multi-City Takedown as Part of Upstate
Guns, Gangs, Drugs Initiative,” US States News, Sept. 6, 2007. Copy supplied.

Michael Zeigler, “‘Murder Unit’ Imprisoned,” Rochester Democrat and
Chronicle, Aug. 24, 2007. Copy supplied.

Ben Dobbin, “Violent Rochester Drug Gang is Broken Up, *3 Imprisoned,”
Associated Press State and Local Wire, Aug. 23, 2007. Copy supplied.

Claudia Vargas, “Teen Jailed on Gun-Sale Charges,” Rochester Democrat and
Chronicle, Aug. 22, 2007. Copy supplied.

Ben Dobbin, “Survivors Say Teens Were Confronted Before a Crash that Killed
3,” Associated Press, Aug. 1 6, 2007. Copy supplied.

Greg Livadas and Ernst Lamothe, Jr., ‘“Families Want the Truth’,” Rochester
Democrat and Chronicle, Aug. 16,2007. Copy supplied.

Jim Aroune, “No Charges in Deadly Chili Crash,” YNN News, Aug. 9, 2007.

Copy supplied.

“Moving Forward,” Rochester Democrat and Chronicle, July 27, 2007. Copy
supplied.

Patrick Flanigan, “Police Chiefs Gather to Exchange Issues, Ideas,” Rochester
Democrat and Chronicle, July 24, 2007. Copy supplied.

40

946

Bennett J. Loudon, “$2M Crime-Fighting Grant Keeps Local Project Going,”
Rochester Democrat and Chronicle, July 21 , 2007. Copy supplied.

Joseph Spector, ‘‘Water Board Recoups Funds,” Rochester Democrat and
National, July 21, 2007. Copy supplied.

Bryan Roth, “Monroe County District Attorney Race Begins,” Messenger Post ,
July 19, 2007. Copy supplied.

Greg Livadas, “Teens’ Deaths Linked to a Chain of F.rrors,” Rochester Democrat
and Chronicle, July 14, 2007. Copy supplied.

“News Beat,” Rochester Democrat and Chronicle , July 13, 2007. Copy supplied.

“Woman Charged With Rape of Two 15-Year-Old Boys,” Associated Press State
and Local Wire, July 13, 2007. Copy supplied.

Michael Zeigler, “New Trial Ordered for Man Convicted in ’05,” Rochester
Democrat and Chronicle, July 7, 2007. Copy supplied.

Staff, “Monroe County Successful in DW1 Convictions,” Rochester Daily Record,
June 23, 2007. Copy supplied.

Patrick Flanigan, “870 lbs. of Pot Seized Here and in Bronx,” Rochester
Democrat and Chronicle, June 22, 2007. Copy supplied.

Michael Zeigler, “Accused in DWI Blames Other Driver,” Rochester Democrat
and Chronicle, June 22, 2007. Copy supplied.

Cristina Domingues, “Gang Drug Probe Nets $3M in Pot,” YNN News, June 21,
2007. Copy supplied.

Patrick Flanigan, “City Police Offering Cash for Tips on Guns,” Rochester
Democrat and Chronicle, June 14, 2007. Copy supplied.

Joel Stashenko, “Commission Gears Up to Review State’s Complex, Inconsistent
Sentencing Scheme,” New York Law Journal, June 1 1 , 2007. Copy supplied.

Michael Zeigler, “Life Sentence Overturned,” Rochester Democrat and
Chronicle, June 9, 2007. Copy supplied.

Joseph Spector, “Brooks, Green Pick Up Support,” Rochester Democrat and
Chronicle , June 5, 2007. Copy supplied.

Gary Craig, “Client Says Party Chief Lunged at His Throat,” Rochester Democrat
and Chronicle, May 31, 2007. Copy supplied.

Joseph Spector, “County Impedes Grant for DA,” Rochester Democrat and
Chronicle, May 29, 2007. Copy supplied.

41

947

Staff, “DA Not Happy with Botched Plea Deal,” YNN News , May 26, 2007, Copy
supplied.

Michael Zeigler, “Judge Renounces Earlier DWI Plea Offer,” Rochester
Democrat and Chronicle , May 25, 2007. Copy supplied.

Steve Orr and Gary Craig, “7 Charged in Tissue Scandal,” Rochester Democrat
and Chronicle, May 18, 2007. Copy supplied.

Joseph Spector, “Monroe Dems Pick Slate,” Rochester Democrat and Chronicle ,
May 18,2007. Copy supplied.

“Seven Charged With Body Harvesting,” The Saskatchewan Star Phoenix , May
18,2007. Copy supplied.

“National Dispatches,” The York Dispatch (Pennsylvania), May 18, 2007. Copy
supplied.

Jeffrey Blackwell, “A Year Later, Adjusting to Freedom,” Rochester Democrat
and Chronicle, May 15, 2007. Copy supplied.

Cristina Dontingues, “RIT Hazing Charges, Monroe’s First,” YNN News, May 10,
2007. Copy supplied.

Gary Craig, “Drunken Driving Takes Toll in Son-ow,” Rochester Democrat and
Chronicle, May 6, 2007 [two versions published]. Copies supplied.

Fernando Diaz, “Legacy of Violence,” Rochester Democrat and Chronicle, May
5, 2007. Copy supplied.

Michael Zeigler, “Maelstrom Buffets Judge Connell,” Rochester Democrat and
Chronicle, May 4, 2007. Copy supplied.

Staff, “Monroe County DA Seeks Greater Penalties for Use of Fake Bombs in
Robberies,” Rochester Daily Record, Apr. 24, 2007. Copy supplied.

Michael Zeigler, “Man Charged With Trying to Kill Cop,” Rochester Democrat
and Chronicle, Apr. 21, 2007. Copy supplied.

Joseph Spector, “Harsher Penalties Sought in Some Robberies,” Rochester
Democrat and Chronicle, Apr. 20, 2007. Copy supplied.

Joseph Spector, “Democrats Still Lacking County Exec Candidate,” Rochester
Democrat and Chronicle, Apr. 19,2007. Copy supplied.

Michael Zeigler, “Jury Rejects Murder Charge,” Rochester Democrat and
Chronicle, Mar. 24, 2007. Copy supplied.

42

948

Patrick Flanigan, “Woman’s Name Revealed in Error,” Rochester Democrat and
Chronicle , Mar. 2, 2007. Copy supplied.

Fernando Diaz, “Bill Focuses on Sex Offenders’ Online Habits,” Rochester
Democrat and Chronicle , Feb. 23, 2007. Copy supplied.

Staff, “Double Initial DNA Test Clears Man,” YNN News , Feb. 21, 2007. Copy
supplied.

Fernando Diaz, “Shooter in Death of Home Intruder Arrested,” Rochester
Democrat and Chronicle , Feb. 16, 2007. Copy supplied.

Michael Zeigler, “Judge Cites Peterkin’s ‘Evil’ in Levying 50-Year Sentence,”
Rochester Democrat and Chronicle, Feb. 14,2007. Copy supplied.

Michael Zeigler, “Mother Decries Jury Verdict in ‘01,” Rochester Democrat and
Chronicle , Jan. 31, 2007. Copy supplied.

Michael Zeigler, “DA: Fake Bombs are Real Danger,” Rochester Democrat and
Chronicle , Jan. 26, 2007. Copy supplied.

Patrick Flanigan, “Arrest Made in Fatal City Hit-Run,” Rochester Democrat and
Chronicle, Jan. 11,2007. Copy supplied.

Michael Zeigler, “Retrial Granted in 2002 Shooting,” Rochester Democrat and
Chronicle , Jan. 4, 2007 Copy supplied.

Steve Orr and Gary Craig, “No Closure to Scandals Yet,” Rochester Democrat
and Chronicle , Dec. 30, 2006. Copy supplied.

Gary Craig, “Activist’s Friends Say She’s Innocent,” Rochester Democrat and
Chronicle, Dec. 20, 2006. Copy supplied.

Gary Livadas, “Fugitive, Guilty of Killing, to Return,” Rochester Democrat and
Chronicle, Dec. 14,2006. Copy supplied.

Noreen O’Donnell, “Behind Bars - and Innocent,” Westchester Journal News,
Dec. 13, 2006. Copy supplied.

Patrick Flanigan, “City, Dead Boy’s Mom Settle,” Rochester Democrat and
Chronicle, Dec. 12, 2006. Copy supplied.

Michael Zeigler, “Woman Allegedly Bilked of $1 Million,” Rochester Democrat
and Chronicle, Dec. 9, 2006. Copy supplied.

Patrick Flanigan, “Puzzle in Latest DW1 Data Refuels Monroe Concerns,”
Rochester Democrat and Chronicle, Dec. 7, 2006. Copy supplied.

43

949

Greg Livadas, “Rally Alleges Police Brutality in Shooting," Rochester Democrat
and Chronicle, Dec. 7, 2006. Copy supplied.

Bennett J. Loudon, “Mayor Praises Officers’ Actions,” Rochester Democrat and
Chronicle, Dec. 5, 2006. Copy supplied.

Patrick Flanigan, “Crusade Targets Drunken Driving,” Rochester Democrat and
Chronicle , Nov. 22, 2006. Copy supplied.

Dolores Orman, “Quick Fix Sought on Glitch in State’s New Gun Laws,”
Rochester Democrat and Chronicle, Nov. 22, 2006. Copy supplied.

Bennett J. Loudon, “Arrests Made in Art Theft Case,” Rochester Democrat and
Chronicle, Nov. 21, 2006. Copy supplied.

“Sen. Robach, District Attorney Green Announce Amendment Providing Much
Needed Protection to Victims of Domestic Violence,” US States News, Nov. 21,
2006. Copy supplied.

Michael Zeigler and Patrick Flanigan, “2nd DW1 Means Prison,” Rochester
Democrat and Chronicle , Nov . 17,2006. Copy supplied.

Patrick Flanigan, “Anti-Crime Program Helps City Kids Read,” Rochester
Democrat and Chronicle, Nov. 16,2006. Copy supplied.

Michael Zeigler, “Agencies Unravel Accident Scheme,” Rochester Democrat and
Chronicle, Nov. 9, 2006. Copy supplied.

Greg Livadas, “Owens Guilty in Death of Minister,” Rochester Democrat and
Chronicle, Nov. 7, 2006. Copy supplied.

Gary Craig, “Aid to Help Area Cops Tape Interrogations,” Rochester Democrat
and Chronicle, Oct. 26, 2006. Copy supplied.

Gary Craig, “Kings DA Cites Link Here to Scandal,” Rochester Democrat and
Chronicle, Oct. 19, 2006. Copy supplied.

James Goodman, “Couple Quit Transit Jobs,” Rochester Democrat and
Chronicle, Oct. 13, 2006. Copy supplied.

Patrick Flanigan, “Anti-Gun Program Reviews 8 Years of Progress,” Rochester
Democrat and Chronicle, Oct. 1 1, 2006. Copy supplied.

Gary Craig, “Test on a Hair Key to Fate of Convict,” Rochester Democrat and
Chronicle, Oct. 6, 2006. Copy supplied.

Steve Orr, “Local Man Sues N.J. Tissue Firm,” Rochester Democrat and
Chronicle, Oct. 5, 2006. Copy supplied.

44

950

Greg Livadas, “Autopsy to Determine Whether Motorist Shot Himself,”
Rochester Democrat and Chronicle, Sept. 6, 2006. Copy supplied.

Greg Livadas and Victoria E. Freile, “Petition Fights Moore Parole,” Rochester
Democrat and Chronicle , Aug. 30, 2006. Copy supplied.

Michael Zeigler, “Late Judge’s Letter Shadows Inmate’s Case,” Rochester
Democrat and Chronicle, Aug. 21, 2006. Copy supplied.

James Goodman and Joseph Spector, “Water a Drain on Ratepayers,” Rochester
Democrat and Chronicle, Aug. 15,2006. Copy supplied.

Brian Sharp and Steve Orr, “Inquiry on Ferry May Go Deeper,” Rochester
Democrat and Chronicle, Aug. 3, 2006. Copy supplied.

Michael Zeigler, “Inmates Seeking Pen Pals, Love Use Web Ads,” Rochester
Democrat and Chronicle, July 30, 2006. Copy supplied.

Will Astor, “Profile: Michael Green, Not Someone to Run Away from a
Challenge,” Rochester Business Journal, July 21, 2006. Copy supplied.

“Organized Crime Task Force Leads Six-County Narcotics Sweep,” US States
News, July 1 9, 2006. Copy supplied.

Michael Zeigler, “Weapons Charges Dropped Against Man after DNA Tests,”
Rochester Democrat and Chronicle, July 7, 2006. Copy supplied.

Fernando Diaz, “Teen League More Than Games,” Rochester Democrat and
Chronicle, July 6, 2006. Copy supplied.

Kate Welshofer, “Project Step-Up Back Again,” YNN News, July 5, 2006. Copy
supplied.

Michael Zeigler, “Felony Prosecutions Accelerate,” Rochester Democrat and
Chronicle, June 29, 2006. Copy supplied.

Seth Voorhees, “Green: Very Good Year for DA,” YNN News, June 28, 2006.
Copy supplied.

Mark Schoenberger, “New Law Would Triple DNA Database,” YNN News, June
26, 2006. Copy supplied.

Michael Zeigler, “New DWI Penalties Lacking for Some,” Rochester Democrat
and Chronicle, June 21 , 2006. Copy supplied.

Gary Craig, “Manvillc Slaying Again the Focus of DNA Inquiry,” Rochester
Democrat and Chronicle, June 16, 2006. Copy supplied.

45

951

Michael Zeigler, “Foiled Robber Claims He’s the Victim,” Rochester Democrat
and Chronicle, June 1 0, 2006. Copy supplied.

Michael Zeigler, “Push for Broader DNA File Heats Up,” Rochester Democrat
and Chronicle, June 9, 2006. Copy supplied.

Gary Craig, “Wamey Case Spurs Call for Use of Video,” Rochester Democrat
and Chronicle, Seme 1,2006. Copy supplied.

Cristina Domingues, “Gun Drop-Off Starts Sunday,” YNN News, May 31, 2006.
Copy supplied.

Patrick Flanigan, “Five Churches Will Host Gun Tum-In Program Saturday,”
Rochester Democrat and Chronicle, May 29, 2006. Copy supplied.

Gary Craig, “Inquiry Urged in Wamey Plea,” Rochester Democrat and Chronicle,
May 1 8, 2006. Copy supplied.

Jim Dwyer and David Staba, “Lawyers Elsewhere Take Note as a New York Man
is Freed by DNA Tests,” New York Times, May 17, 2006. Copy supplied.

Gary Craig, “Justice’s 10-Year Detour Ends for Innocent Man,” Rochester
Democrat and Chronicle, May 1 7, 2006. Copy supplied.

Ben Dobbin, “Inmate Exonerated by DNA Tests after 10 Years in Prison is
Freed,” Associated Press State and Local Wire, May 1 6, 2006. Copy supplied.

Jim Dwyer, “Inmate to Be Freed as DNA Tests Upend Murder Confession,” New
York Times, May 16, 2006. Copy supplied.

“Gov. Pataki Calls for Assembly to Allow Vote to Expand New York State DNA
Databank, US Stales News, May 9, 2006. Copy supplied.

Greg Livadas, “Help for Witnesses Sought,” Rochester Democrat and Chronicle,
May 2, 2006. Copy supplied.

Leah George, “Bill to Protect Local Witnesses,” YNN News, May J, 2006. Copy
supplied.

Will Astor, “Bar President Warns of Risk to Protection,” Rochester Business
Journal, May 2006. Copy supplied.

Patrick Flanigan, “Meth Creeps In," Rochester Democrat and Chronicle, Apr. 29,
2006. Copy supplied.

Ernst Lamothe, Jr., “Drug Probe Nets 1 1 Arrests,” Rochester Democrat and
Chronicle, Apr. 12,2006. Copy supplied.

46

952

Rocco Vertuccio, “Police Arrest 1 1 in Drug Bust,” YNN News, Apr. 1 1, 2006.
Copy supplied.

Patrick Flanigan, “Hickey’s Dream Comes to an End After 30 Years,” Rochester
Democrat and Chronicle, Apr. 9, 2006. Copy supplied.

Patrick Flanigan, “Outrage Sparks Arrests of 3,” Rochester Democrat and
Chronicle , Apr. 5, 2006. Copy supplied.

Steve Orr, “Monroe DA Opens Probe of Tissue Harvesting,” Rochester Democrat
and Chronicle , Mar. 1, 2006. Copy supplied.

Mark Hare, “Will A.J.’s Memory Help Us End the Cycle of Abuse?” Rochester
Democrat and Chronicle, Feb. 12, 2006. Copy supplied.

Michael Zeigler, “Mom of Scalded Boy Gets 23 Years,” Rochester Democrat and
Chronicle, Feb. 9, 2006. Copy supplied.

Leah George, “Mother Sentenced in Son’s Death,” YNN News, Feb. 8, 2006.

Copy supplied.

Leo Roth, “Squares are a Good Bet to Liven Up the Game,” Rochester Democrat
and Chronicle, Feb. 5, 2006. Copy supplied.

Leo Roth, “Gambling Booms on NFL Games,” Rochester Democrat and
Chronicle , Feb. 5, 2006. Copy supplied.

Alan Morrell, “House Fire Adds Stress for Family,” Rochester Democrat and
Chronicle, Jan. 31, 2006. Copy supplied.

A. Young and C. Domingues, “Tougher Sex Offender Laws Proposed,” YNN
News, Jan. 5, 2006. Copy supplied.

“Rochester Getting New Gunshot-Tracing Technology,” Associated Press, Dec.
29, 2005. Copy supplied.

Gary Craig and Greg Livadas, “Indictment Likely to ID Spahalski in Slayings,”
Rochester Democrat and Chronicle, Dec. 23, 2005. Copy supplied.

Kate Welshofer, “Schoolgirl Rapist Gets the Max,” YNN News, Dec. 21, 2005.
Copy supplied.

Ernst Lamothe, Jr., “Buffalo Man ID’d in Failed Robbery,” Rochester Democrat
and Chronicle, Dec. 21, 2005. Copy supplied.

Jim Aroune and Scott Fairbanks, “Brockport Suspect Name Revealed,” YNN
News, Dec. 20, 2005 . Copy supplied.

47

953

Alan Morrell, “Agencies Join to Arrest 118 Wanted Here,” Rochester Democrat
and Chronicle, Dec. 14, 2005. Copy supplied.

“Hare Krishna Sect Uncovered; Is America Ready for Cowboys in Love?;
Proposed New Immigration Law Triggers Heated Debate,” Paula Zahn Now ,

Dec. 13,2005. Copy supplied.

Michael Zeigler, “Irondequoit Rulings Reversed,” Rochester Democrat and
Chronicle, Dec. 13,2005. Copy supplied.

Jim Aroune and Scott Fairbanks, “Breathalyzer Results Allowed,” YNN News,
Dec. 12, 2005. Copy supplied.

Patrick Flanigan, “$1M in Cocaine Netted in City Bust,” Rochester Democrat and
Chronicle, Nov. 30, 2005. Copy supplied.

Seth Voorhees, “Million Dollar Coke Bust in City,” YNN News , Nov. 29, 2005.
Copy supplied.

Patrick Flanigan, “Boy’s Death Ruled Homicide,” Rochester Democrat and
Chronicle , Nov. 29, 2005. Copy supplied.

Patrick Flanigan, “City Addicted to Gun Habit,” Rochester Democrat and
Chronicle, Nov. 20, 2005. Copy supplied.

“Man Convicted of Raping Schoolgirls a Decade Ago,” Associated Press State
and Local Wire, Nov. 17,2005. Copy supplied.

Michael Zeigler, “Man Convicted of 4 Rapes,” Rochester Democrat and
Chronicle, Nov. 17,2005. Copy supplied.

Rocco Vertuccio, “Rape Trial Focuses on DNA,” YNN News, Nov. 1 4, 2005.

Copy supplied.

Patrick Flanigan, Greg Livadas and Steve Onr, “Other Unsolved Slayings
Resurface,” Rochester Democrat and Chronicle, Nov. 1 1, 2005. Copy supplied.

Erica Bryant, “Local Leaders and their Music,” Rochester Democrat and
Chronicle, Nov. 7, 2005. Copy supplied.

Dale Hall, “Twenty-One Monroe County Mental Health Court Graduates
Honored,” Rochester Democrat and Chronicle, Oct. 31, 2005. Copy supplied.

Anthony Pascale, “Monroe DA Sues irondequoit Judge,” YNN News, Oct. 27,
2005. Copy supplied.

“In A New York Minute,” Syracuse Post Standard , Oct. 26, 2005. Copy
supplied.

48

954

Jeffrey Blackwell, "City Acknowledges Its Gang Problem - Correction,”
Rochester Democrat and Chronicle , Oct. 26, 2005. Copy supplied.

Michael Zeigler, "DA Fights Evidence Ruling in DW1 Cases,” Rochester
Democrat and Chronicle , Oct. 25, 2005. Copy supplied.

Michael Zeigler, “Judge Exonerates Principal,” Rochester Democrat and
Chronicle , Oct. 21, 2005. Copy supplied.

James Goodman, “Parents Are Being Urged to Curb Teen Drinking,” Rochester
Democrat and Chronicle , Oct. 2 1 , 2005. Copy supplied.

Wendy Mils, “Program Targets Illegal Guns,” YNN News, Oct. 1 1, 2005. Copy
supplied.

Jim Memmott, “Youth Violence: A Community Crisis,” Rochester Democrat and
Chronicle , Oct. 7, 2005. Copy supplied.

Jim Memmott, “Youth Violence: A Community Crisis,” Rochester Democrat and
Chronicle , Oct. 4, 2005. Copy supplied.

Patrick Flanigan, “Youth Violence: A Community Crisis,” Rochester Democrat
and Chronicle, Oct. 4, 2005. Copy supplied.

Carol Robinson, “Alabama Heats Up Cold Cases; Forensic Scientists Help ID
Suspects in 22 States,” Birmingham (Alabama) News, Oct. 2, 2005. Copy
supplied.

Jeffrey Blackwell and Patrick Flanigan, “2 Accused in Teen’s Slaying -
Correction,” Rochester Democrat and Chronicle, Oct. 1, 2005. Copy supplied.

Patrick Flanigan, “Father, Son Arrested in Fatal Assault,” Rochester Democrat
and Chronicle , Sept. 28, 2005. Copy supplied.

Michael Zeigler, “Bittersweet Closing,” Rochester Democrat and Chronicle, Sept.
24,2005. Copy supplied.

Michael Zeigler, “Prison Inmate Hangs Self,” Rochester Democrat and
Chronicle, Sept. 10,2005. Copy supplied.

Greg Li vadas, “Inmate Accused of Plot to Kill,” Rochester Democrat and
Chronicle, Sept. 1, 2005. Copy supplied.

Rich Turner, “Alleged Rapist Back in Court,” YNN News, Aug, 31, 2005. Copy
supplied.

Liz Medhin, “Two Plot Escape and Witness Murder,” YNN News, Aug. 31, 2005.
Copy supplied.

49

955

Michael Zeigler, “Molester Cleared of Violating Probation,” Rochester Democrat
and Chronicle , Aug, 24, 2005. Copy supplied.

Donna Jacket, “Abused Kids Get 1-Stop Aid - Correction,” Rochester Democrat
and Chronicle, Aug. 19, 2005. Copy supplied.

Lara Becker Liu, “Fallen Angel: The Short, Tragic Life of Charkendra Baker Part
2,” Rochester Democrat and Chronicle, Aug. 15,2005. Copy supplied.

Michael Zeigler, “DWI Convict May Faee Felony,” Rochester Democrat and
Chronicle, Aug. 10,2005. Copy supplied.

Matthew Daneman, “Hoops Used to Help Teens,” Rochester Democrat and
Chronicle, Aug. 10, 2005. Copy supplied.

Jim Memmott, “Connections," Rochester Democrat and Chronicle, Aug. 6, 2005.
Copy supplied.

Staff, “NY Atty General’s Study Shows Felony Convictions, Prison Sentences Up
Dramatically,” Rochester Daily Record, July 20, 2005. Copy supplied.

Michael Zeigler, “More Felons Going to Prison,” Rochester Democrat and
Chronicle , July 18, 2005. Copy supplied.

Jeffrey Blackwell, “Victims Agency Funded,” Rochester Democrat and
Chronicle, July 13, 2005. Copy supplied.

Patrick Flanigan, “Victim Relives Her Fear,” Rochester Democrat and Chronicle ,
July 9, 2005. Copy supplied.

Alan Morrell, “Forum Allows Youths to Discuss Pressures,” Rochester Democrat
and Chronicle, July 8, 2005. Copy supplied.

Cristina Domingues, “DA Wants More DNA from Rape Suspect,” YNN News,
July 6, 2005. Copy supplied.

Michael Zeigler, “Schoolgirl Rape Suspect Pleads Not Guilty,” Rochester
Democrat and Chronicle, June 28, 2005. Copy supplied.

Cristina Domingues, “Accused Rapist Faced Another Trial,” YNN News, June 27,
2005. Copy supplied.

Patrick Flanigan, “DNA Links Man to ’95 Rapes,” Rochester Democrat and
Chronicle, June 24, 2005. Copy supplied.

Patrick Flanigan, “Felon Stays in Prison - For Now,” Rochester Democrat and
Chronicle, June 23, 2005. Copy supplied.

50

956

Diana Louise Carter, “Law Enforcers Go After Gangs,” Rochester Democrat and
Chronicle, June 10,2005. Copy supplied.

Gary Craig, “Gun Violence Investigation Leads to Drug Charges for 7,”

Rochester Democrat and Chronicle, June 9, 2005. Copy supplied.

Michael Zeigler, “DA May be Hiding Data in Slaying Case, Lawyer Says,”
Rochester Democrat and Chronicle, June 8, 2005. Copy supplied.

Leo Roth, “Forever a Champion,” Rochester Democrat and Chronicle, June 5,
2005. Copy supplied.

Seth Voorhees, “OB-GYN Sentenced in Sex Abuse Case,” YNN News, June 1,
2005. Copy supplied.

Meaghan M. McDermott and Jeffrey Blackwell, “Officer Kills Gates Man in
Standoff at Complex," Rochester Democrat and Chronicle , May 26, 2005. Copy
supplied.

Michael Zeigler, “Murder Jury Acquits Man,” Rochester Democrat and
Chronicle, May 25, 2005. Copy supplied.

“Woman Pleads in Fatal Stabbing,” Associated Press State and Local Wire, May
21,2005. Copy supplied.

“News Beat,” Rochester Democrat and Chronicle , May 21, 2005. Copy supplied.

Liz Medhin, “Tougher Law for PW Convictions,” YNN News, May 2, 2005.
Copy supplied.

Gary Craig, “Conviction Overturned in Burglary Death,” Rochester Democrat
and Chronicle, Apr. 29, 2005. Copy supplied.

Michael Zeigler, “Homicide Defenses Weighed,” Rochester Democrat and
Chronicle, Apr. 27, 2005. Copy supplied.

Cristina Domingues, “Capital Defenders Lose Funding,” YNN News, Apr. 27,
2005. Copy supplied.

Liz Medhin, “Greece Father Appears in Court,” YNN News, Apr. 26, 2005. Copy
supplied.

Jim O’Hara and Greg Munno, “Courtroom Drama; D.A.’s Clash with Judges has
Statewide Implications,” Syracuse Post-Standard, Apr. 18,2005. Copy supplied.

Victoria E. Freile, “Boy, 7, a Possible Witness, DA Says,” Rochester Democrat
and Chronicle , Apr. 12, 2005. Copy supplied.

51

957

Greg Livadas, “Drug Bust Leads to 1 0 Arrests,” Rochester Democrat and
Chronicle , Apr. 12, 2005. Copy supplied.

Seth Voorhees, “Death Penalty Legislation Stalls,” YNN News, Apr. 12, 2005.
Copy supplied.

Seth Voorhees, “Urban Crime Panel Seeks Answers,” YNN News, Apr. 7, 2005.
Copy supplied.

Jeffrey Blackwell, “Grief Redoubled,” Rochester Democrat and Chronicle, Apr.

6, 2005. Copy supplied.

Miehael Zeigler, ‘“Coldblooded Killer’ Receives Top Sentence,” Rochester
Democrat and Chronicle, Mar. 30, 2005. Copy supplied.

Seth Voorhees and Cristina Domingues, “Leonardo Gets More Times,” YNN
News, Mar. 30, 2005. Copy supplied.

Cristina Domingues, “DA Green Releases Report,” YNN News, Mar. 29, 2005.
Copy supplied.

Patrick Flanigan, “Homicide’s John Gropp Retires,” Rochester Democrat and
Chronicle, Mar. 15, 2005. Copy supplied.

Seth Voorhees, “High Court to Hear Camera Argument,” YNN News, Mar. 14,
2005. Copy supplied.

Jeffrey Blackwell, “Crime Victims Group Struggling to Survive,” Rochester
Democrat and Chronicle, Mar. 4, 2005. Copy supplied.

Seth Voorhees, “Lawmen React to Duffy Retirement,” YNN News, Mar. 3, 2005.
Copy supplied.

Michelle York, “Taking the Streets Back From Gangs, One Merciless Step at a
Time,” New York Times, Feb. 28, 2005. Copy supplied.

Patrick Flanigan, “Illicit Photos Could Net Jail Time,” Rochester Democrat and
Chronicle, Feb. 27, 2005. Copy supplied.

James Hannah, “Perspective: Prosecuting Terminally 111 Defendants Divides
Legal Experts,” Associated Press State and Local Wire, Feb. 1 1, 2005. Copy
supplied.

Gary Craig, “Leonardo Wants Plea Vacated,” Rochester Democrat and Chronicle,
Feb. 6, 2005. Copy supplied.

Michael Zeigler, “Tough Stance on Plea Deals Clogging Courts,” Rochester
Democrat and Chronicle, Feb. 5, 2005. Copy supplied.

52

958

Michael Zeigler, “Defense Lawyers Slam One-Size-Fits-All Policy, Unnecessary
Trials,” Rochester Democrat and Chronicle , Feb. 5, 2005. Copy supplied.

Michael Zeigler, “Screening Plan Still Disposing of Felony Cases,” Rochester
Democrat and Chronicle , Feb. 5, 2005. Copy supplied.

Pam Cowan, “King: How Close is His Dream to Reality?” Rochester Democrat
and Chronicle, Jan. 14,2005. Copy supplied.

Patrick Flanigan, “State Vows Further Help vs. Homicides,” Rochester Democrat
and Chronicle , Dec. 31, 2004. Copy supplied.

Patrick Flanigan, “City Homicides Drop 39%,” Rochester Democrat and
Chronicle , Dec. 30, 2004. Copy supplied.

Leah George, “Rochester’s Homicide Rate Down,” TAW News, Dec. 30, 2004.
Copy supplied.

Patrick Flanigan, “County Leader Launches 1 0-Day Anti-D WI Effort,” Rochester
Democrat and Chronicle, Dec. 22, 2004. Copy supplied.

“Spitzer: Drop That Gun,” ConsnmerAffairs.com, Dec. 20, 2004. Copy supplied.

Greg Livadas, “State Fee Puts Pedal to Drivers’ Wallets,” Rochester Democrat
and Chronicle, Dec. 18,2004. Copy supplied.

Gary Craig, “Quest for Genetic Testing in Wamey Case Rejected,” Rochester
Democrat and Chronicle, Dec. 2004. Copy supplied.

Leah George, “Winebrenner Will Not Face Death,” TAW News, Dec. 17, 2004.
Copy supplied.

Patrick Flanigan, “Police to Get Gunshot Detector,” Rochester Democrat and
Chronicle, Dec. 1 5, 2004. Copy supplied.

Gary Craig, “DNA Test Hinges on Sample,” Rochester Democrat and Chronicle,
Dec. 15, 2004. Copy supplied.

Michael Zeigler, “Tragic Series of ‘What Ifs\” Rochester Democrat and
Chronicle, Dec. 11,2004. Copy supplied.

Michael Zeigler, “Judge Rips Road-Rage Plea Deal,” Rochester Democrat and
Chronicle, Dec. 11, 2004. Copy supplied.

Michael Zeigler, “Brothers Charged in Auto-Shop Sting,” Rochester Democrat
and Chronicle , Dec. 9, 2004. Copy supplied.

Leah George, “Pair Charged with Insurance Fraud,” TAW News, Dec. 8, 2004.
Copy supplied.

53

959

Kate Welshofer, “Reforming Rockefeller,” YNN News, Dec. 7, 2004. Copy
supplied.

Patrick Flanigan, “Correction - DA Defers to Grand Jury in Webster Shooting
Case,” Rochester Democrat and Chronicle , Dec. 7, 2004. Copy supplied.

Cristina Domingues, “Phishing Lures in Victims,” YNN News, Dec. 6, 2004.
Copy supplied.

Greg Livadas, “23 from Area Charged in Upstate Cocaine Arrests,” Rochester
Democrat and Chronicle, Dec. i, 2004. Copy supplied.

Michaei Zeigler, “Court Watchers Seek Justice,” Rochester Democrat and
Chronicle, Nov. 26, 2004. Copy supplied.

Michael Zeigler, “Ruling Voids Life Sentence of Man Who Killed Hunter,”
Rochester Democrat and Chronicle, Nov. 20, 2004. Copy supplied.

Gary Craig, “Law Clinic Co-Director Criticizes DA’s Office,” Rochester
Democrat and Chronicle, Nov. 16,2004. Copy supplied.

Gary Craig, “Making a Case for Innocence,” Rochester Democrat and Chronicle ,
Nov. 15,2004. Copy supplied.

Gary Craig, “DA OK’s Limited Test in Manville Slaying,” Rochester Democrat
and Chronicle, Nov. 15,2004. Copy supplied.

Seth Voorhees and Cristina Domingues, “Lawyers Ask for DNA Tests,” YNN
News, Nov. 15, 2004. Copy supplied.

Michael Zeigler, “DA Finishes First Among Local Runners,” Rochester
Democrat and Chronicle, Nov. 9, 2004. Copy supplied.

Jill Miller, “Integrated Domestic Violence Court Celebrates Anniversary,”
Rochester Daily Record, Oct. 26, 2004. Copy supplied.

Gary Craig, “The DNA,” Rochester Democrat and Chronicle, Oct. 1 7, 2004.
Copy supplied.

Michael Zeigler, “Bryant Guilty of Murder,” Rochester Democrat and Chronicle,
Oct. 16, 2004. Copy supplied.

Kevin M. Momot, “NY State Supreme Court, Appellate Division, Honors
Retiring Judge Donald J. Wisner,” Rochester Daily Record, Oct. 15, 2004. Copy
supplied.

Michael Zeigler, “Eyewitness Recants, Delays Murder Trial,” Rochester
Democrat and Chronicle, Oct. 13,2004. Copy supplied.

54

960

Gary Craig, “DA Staffer Still on Job Despite Driving While Impaired,” Rochester
Democrat arid Chronicle , Oct. 6, 2004. Copy supplied.

Michael Zeigler, “Parolee Pleads Not Guilty to Murder of 21-Year-Old,”
Rochester Democrat and Chronicle, Sept. 29, 2004. Copy supplied.

Jeffrey Blackwell and Patrick Flanigan, “Arrest in Pittsford Killing,” Rochester
Democrat and Chronicle , Sept 25, 2004. Copy supplied.

Michael Zeigler, “Moore Denied Parole for 12th Straight Time,” Rochester
Democrat and Chronicle , Sept. 25, 2004. Copy supplied.

“Morning Briefs,” Florida Times-Union , Sept. 9, 2004. Copy supplied.

Greg Livadas, “Woman Arrested in Slaying of Housemate,” Rochester Democrat
and Chronicle , Sept. 8, 2004. Copy supplied.

Steve Orr, “DA Considers Charges against CSX,” Rochester Democrat and
Chronicle , Sept. 4, 2004. Copy supplied.

William Glaberson, “Across New York, a Death Penalty Stuck in Limbo,” New
York Times , Aug. 2 1 , 2004. Copy supplied.

Michael Zeigler, “Mateo Sentenced; Judge Wishes Him Long Life,” Rochester
Democrat and Chronicle, Aug. 19, 2004. Copy supplied.

Seth Voorhees, “Mateo Gets Life Without Parole,” YNN News, Aug. 18, 2004.
Copy supplied.

Michael Zeigler, “Monroe Pay Freeze Chills Law Jobs’ Appeal,” Rochester
Democrat and Chronicle, Aug. 1, 2004. Copy supplied.

Patrick Flanigan, “Killer’s Parole Bid Stirs Outcry,” Rochester Democrat and
Chronicle, July 21, 2004. Copy supplied.

Michael Zeigler, “Gang Member Gets 65 years for Murder, Theft,” Rochester
Democrat and Chronicle, July 14, 2004. Copy supplied.

Patrick Flanigan, “County Misled by State Grant,” Rochester Democrat and
Chronicle, July 12, 2004. Copy supplied.

Bob Smith, “What’s Next for Capital Punishment?” Radio Interview, 1370
Connection on WXXI, July 9, 2004. Audio recording supplied.

Michael Zeigler, “Sentence in Child’s Death Set for Appeal,” Rochester
Democrat and Chronicle, July 9, 2004. Copy supplied.

Michael Zeigler, “Murderer’s Life Saved by Top Court’s Refusal,” Rochester
Democrat and Chronicle, June 29, 2004. Copy supplied.

55

961

“Despite Court Ruling, District Attorney Seeking Death Penalty,” Associated
Press Slate and Local Wire, June 28, 2004. Copy supplied.

Tom Precious, “State’s High Court Leaves Death Penalty in Limbo,” The Buffalo
News, June 25, 2004. Copy supplied.

Seth Voorhees and Judy Mendoza, “Court Ruling Affects Murder Case,” WN
News , June 25, 2004. Copy supplied.

William Glaberson, “4-3 Ruling Effectively Halts Death Penalty in New York,”
New York Times , June 25, 2004. Copy supplied.

Michael Zeigler, “Rochester-Area Cases Also Affected,” Rochester Democrat
and Chronicle, June 25, 2004. Copy supplied.

Patrick Flanigan, “Family Accused of Hiring Killer,” Rochester Democrat and
Chronicle , June 23, 2004. Copy supplied.

Seth Voorhees, “Police Charge Family with Plot,” YNN News, June 23, 2004.
Copy supplied.

Michael Zeigler, “Jury Finds Garrett Killed in Cold Blood,” Rochester Democrat
and Chronicle, June. 19,2004. Copy supplied.

Todd Grady, “Republican Treasurer Quits,” Rochester Democrat and Chronicle,
June 18,2004. Copy supplied.

Gary Craig, “DNA Test Sought in ,# 8 Case,” Rochester Democrat and Chronicle,
June 12, 2004. Copy supplied.

Michael Zeigler, “Builder Shorted Pay, DA Charges,” Rochester Democrat and
Chronicle, June 3, 2004. Copy supplied.

Meaghan M. McDermott, “Cause of Baby’s Death Uncertain,” Rochester
Democrat and Chronicle, May 29, 2004. Copy supplied.

Staff, “News Beat,” Rochester Democrat and Chronicle, May 29, 2004. Copy
supplied.

Lynn Wesley, “Police Identify Mother of Dead Baby,” YNN News, May 28, 2004.
Copy supplied.

Gary Craig, “DA’s Aide Charged with DWI,” Rochester Democrat and
Chronicle, May 26, 2004. Copy supplied.

Seth Voorhees and Katie DeTar, “Undercover RPD Cop Wounds Man,” YNN
News, May 26, 2004. Copy supplied.

56

962

“New York Father Arrested for Allegedly Killing Mother, Battering Children;
Sen. Pat Roberts: Bulldoze Abu Ghraib Prison; Donald Rumsfeld to Testify
Tomorrow Morning,” CNN Newsnight Aaron Brown 22:00, May 6, 2004. Copy
supplied.

Ed Buttaccio, “Girl Says Shooter Spared Her,” YNN News, May 4, 2004. Copy
supplied.

Donna Jackel, “Cost of Child Abuse Steep,” Rochester Democrat and Chronicle,
Apr. 30, 2004. Copy supplied.

Staff, “The Green Stamp,” Rochester Democrat and Chronicle , Apr. 12, 2004.
Copy supplied.

Staff, “NY State Launches New Crime Fighting Initiative in Rochester,”
Rochester Daily Record. Apr. 9, 2004. Copy supplied.

Patrick Flanigan, “Pataki Targets Crime in City,” Rochester Democrat and
Chronicle, Apr. 6, 2004. Copy supplied.

Ben Dobbin, “State Troopers Helping Hard-Pressed Cities Tackle Crime,”
Associated Press, Apr. 5, 2004. Copy supplied.

Rich Turner and Judy Mendoza, “Preliminary Hearing Cuts Save Money,” YNN
News, Apr. 4, 2004. Copy supplied.

Michael Zeigler, “DA Seeks Top Court Decision on Mateo,” Rochester Democrat
and Chronicle, Ays. 1,2004. Copy supplied.

Ben Dobbin, “Prosecutor Looks to U.S. Supreme Court to Return Killer to Death
Row,” Associated Press Slate and Local Wire, Mar. 3 1 , 2004. Copy supplied.

Michael Zeigler, “Preliminary Hearings Curbed,” Rochester Democrat and
Chronicle, Mar. 29, 2004. Copy supplied.

Katie DeTar, “DA Drops Preliminary Hearings,” YNN News, Mar. 29, 2004.

Copy supplied.

Rick Armon, “Police Searching for Two Men in Bus-Driver Attack,” Rochester
Democrat and Chronicle, Mar. 27, 2004. Copy supplied.

Joseph Hill, “An Assault on a Bus Driver,” YNN News, Mar. 26, 2004. Copy
supplied.

Michael Zeigler, “Woman Spared Capital Case,” Rochester Democrat and
Chronicle, Mar. 16,2004. Copy supplied.

57

963

Ben Dobbin, “Girlfriend Won’t Face Death Penalty in Murder-for-Hire Plot,”
Associated Press State and Local Wire , Mar. 15, 2004. Copy supplied.

M. Schoenberger and K. DeTar, “DA Will Not Seek Death for Green,” YNN
News, Mar. 1 5, 2004. Copy supplied.

Patrick Flanigan, “Officer Found Not Guilty of Cocaine Possession,” Rochester
Democrat and Chronicle, Mar. 1 1 , 2004. Copy supplied.

Michael Zeigler, “Another Life Term for Mateo,” Rochester Democrat and
Chronicle , Mar. 11, 2004. Copy supplied.

Katie DeTar and Jim Aroune, “Wanted Man Dies after Police Chase,” YNN News ,
Mar. 9, 2004. Copy supplied.

Greg Livadas, “Family Sues Hospital Over Death,” Rochester Democrat and
Chronicle , Mar. 6, 2004. Copy supplied.

Alan Morrell, “Anti-Crime Grant Secured,” Rochester Democrat and Chronicle,
Mar. 3, 2004. Copy supplied.

Michael Zeigler, “Alleged Accomplice Arraigned,” Rochester Democrat and
Chronicle, Mar. 2, 2004. Copy supplied.

Jonathan Jenkins, “Ceasefire Works; Street Violence Quelled by New U.S.
Approach,” The Toronto Sun, Mar. 2, 2004. Copy supplied.

Cristina Domingues, “Penfteld Murder Suspect Arraigned,” YNN News, Mar. 1,
2004. Copy supplied.

Ben Dobbin, “A Proven Strategy for Curtailing Street Killings Arrives in a
Stricken City,” Associated Press, Feb. 29, 2004. Copy supplied.

Michael Zeigler, “Woman May Face Death Penalty,” Rochester Democrat and
Chronicle, Feb. 28, 2004. Copy supplied.

Leo Roth, “Poker’s,” Rochester Democrat and Chronicle, Feb. 26, 2004. Copy
supplied.

William Glaberson, “High Court, Citing Flaw in Law, Again Dismisses a Death
Penalty,” New York Times, Feb. 25, 2004. Copy supplied.

Michael Zeigler, “Mateo Death Sentence Tossed,” Rochester Democrat and
Chronicle, Feb. 25, 2004. Copy supplied.

John Caher, “Plea Provision Again Topples Capital Case,” New York Law
Journal, Feb. 25, 2004. Copy supplied.

58

964

Joel Stashenko, “High Court Throws Out Another Death Sentence,” Associated
Press State and Local Wire, Feb, 24, 2004. Copy supplied.

Joseph Hill, “Mateo Death Sentence Thrown Out,” YNN News, Feb. 24, 2004.
Copy supplied.

Patrick Flanigan and Greg Livadas, “Man May Face New Charges in Death of
Friend,” Rochester Democrat and Chronicle, Feb. 20, 2004. Copy supplied.

Jim Aroune and Cristina Domingues, “Man Dies after Domestic Spat,” YNN
News, Feb. 19, 2004. Copy supplied.

Michael Zeigler, “DA Says Grants Will Add Staff to Office,” Rochester
Democrat and Chronicle, Feb. 1 8, 2004. Copy supplied.

Patrick Flanigan, “Grand Jury Testimony is Focus,” Rochester Democrat and
Chronicle, Feb. 2, 2004. Copy supplied.

Michael Zeigler, “DA to Call for Death Penalty,” Rochester Democrat and
Chronicle , Jan. 24, 2004. Copy supplied.

Ben Dobbin, “Man Threatened with Death Penalty in Stepsister’s Slaying,”
Rochester Democrat and Chronicle, Jan. 23, 2004. Copy supplied.

Greg Johnston, “Winebrenner Could Get Death,” YNN News, Jan. 23, 2004. Copy
supplied.

Michael Wentzel, “Judge Tosses Murder Charge,” Rochester Democrat and
Chronicle, Jan. 21, 2004. Copy supplied.

Rick Armon, “Freed Heist Suspect Robs Again, Police Say,” Rochester Democrat
and Chronicle, Jan. 17, 2004. Copy supplied.

Nora A. Jones, “Non-Partisan Approach Commended at Monroe County DA’s
Retirement Bash,” Rochester Daily Record, Jan. 1 4, 2004. Copy supplied.

Michael Zeigler, “Issues of Life, Death in Mateo Decision,” Rochester Democrat
and Chronicle, Jan. 14, 2004. Copy supplied.

Patrick Flanigan, “Felon’s ‘Binge’ Turns Heat on System,” Rochester Democrat
and Chronicle, Jan. 1 1 , 2004. Copy supplied.

Cristina Domingues, “Pataki Targets ‘Deadly’ Drivers,” YNN News, Jan. 7, 2004.
Copy supplied.

Michelle York, “Losing a Loud Voice in the Fight on Injustice; Retiring,
Rochester Minister Looks Back on 40 Years as the City’s No. 1 Agitator,” New
York Times, Jan 5, 2004. Copy supplied.

59

965

Dolores Orman, “Suspect in School Video Case Dies,” Rochester Democrat and
Chronicle, Dec. 24, 2003. Copy supplied.

Patrick Flanigan, “Neighborhood Mum on Gang,” Rochester Democrat and
Chronicle, Dec. 23, 2003. Copy supplied.

Seth Voorhees, “Wemes Death Ends Criminal Case,” YNN News, Dec. 23, 2003.
Copy supplied.

Ben Dobbin, “Police Arrest Dozen Gang Members Tied to Killings, Robberies,”
Associated Press State and Local Wire, Dec. 22, 2003. Copy supplied.

Patrick Flanigan, “Cops Come Down Hard on Gang,” Rochester Democrat and
Chronicle, Dec. 22, 2003. Copy supplied.

Jeffrey Blackwell, “Garrett Spared Ultimate Sentence,” Rochester Democrat and
Chronicle, Dec. 18,2003. Copy supplied.

Meaghan M. McDermott, “Facility Will Serve Abused Children,” Rochester
Democrat and Chronicle, Dec. 17, 2003. Copy supplied.

Rocco Vertuccio, “DA Probes School Bathroom Cams,” YNN News, Dec. 3,
2003. Copy supplied.

Jill Miller, “Kenneth C. Hyland Named First Assistant District Attorney for
Monroe County,” Rochester Daily Record, Dec. 1 , 2003. Copy supplied.

Michael Zeigler, “Woman Fights a Bid for Freedom,” Rochester Democrat and
Chronicle , Nov. 27, 2003. Copy supplied.

Michael Zeigler, “Green Picks Top Assistant DA,” Rochester Democrat and
Chronicle, Nov. 26, 2003. Copy supplied.

Anthony Pascale and Katie DeTar, “Green Comments on Violence,” YNN News,
Nov. 9, 2003. Copy supplied.

Gary Craig, “Green’s Career Parallels Relin’s,” Rochester Democrat and
Chronicle, Nov. 6, 2003. Copy supplied.

Gary Craig, “Green Wins Close Vote in District Attorney Race,” Rochester
Democrat and Chronicle , Nov. 5, 2003. Copy supplied.

Jessica Williams, “DA Candidates Vote,” YNN News, Nov. 4, 2003. Copy
supplied.

Michael Zeigler and Alan Morrell, “Man, Teen Charged in Fires,” Rochester
Democrat and Chronicle, Nov. 1, 2003. Copy supplied.

60

966

Jessica Williams, “Candidates ‘Get Out the Vote’,” YNN News , Nov. 1 , 2003.
Copy supplied.

Gary Craig, “Fighting for Rochester’s Future/ Campaign 2003,” Rochester
Democrat and Chronicle, Oct. 31, 2003. Copy supplied.

Joseph Spector, “Fighting for Rochester’s Future/ Campaign 2003,” Rochester
Democrat and Chronicle, Oct. 31, 2003. Copy supplied.

Michael Zeigler, “Jury Convicts Man in LaTesha’s Murder,” Rochester Democrat
and Chronicle, Oct. 30, 2003. Copy supplied.

Gary Craig, “DA Candidates Debate Pleas,” Rochester Democrat and Chronicle,
Oct. 29, 2003. Copy supplied.

Rocco Vertuccio, “D.A. Candidates Duel Over Ads,” YNN News, Oct. 28, 2003.
Copy supplied.

Gary Craig, “Voter Guide 2003 / District Attorney,” Rochester Democrat and
Chronicle, Oct. 26, 2003. Copy supplied.

Greg Livadas, “Two Prosecutors to Aid Police,” Rochester Democrat and
Chronicle, Oct. 24, 2003. Copy supplied.

Jeffrey Blackwell, “Die Race for Monroe County District Attorney,” Rochester
Democrat and Chronicle , Oct. 22, 2003. Copy supplied.

Michael Zeigler, “DMA ‘Cold Hits’ D nt Freeze on State Felons,” Rochester
Democrat and Chronicle, Oct. 20, 2003. Copy supplied.

Gary Craig, “DA Candidates Spar Over Ad,” Rochester Democrat and Chronicle,
Oct. 4, 2003. Copy supplied.

Seth Voorhees, “Dems Slam GOP D.A. Ad,” YNN News, Oct. 3, 2003. Copy
supplied.

Meaghan M. McDermott, “Man Charged in Attack on Girl,” Rochester Democrat
and Chronicle, Sept. 22, 2003. Copy supplied.

Jessica Williams, “Sodomy Suspect Could Face Exam,” YNN News, Sept. 22,
2003. Copy supplied.

Michael Zeigler, “Garrett Attorney Talks Penalty,” Rochester Democrat and
Chronicle, Sept. 17,2003. Copy supplied.

Gary Craig, “City Sheds 5 of ‘the Worst of the Worst’,” Rochester Democrat and
Chronicle, Sept. 14, 2003. Copy supplied.

61

967

Gary Craig, “Ex-Judge Releases Crime Plan,” Rochester Democrat and
Chronicle , Sept. 13,2003. Copy supplied.

Cristina Domingues, “Taddeo Calls for No Plea Deals,” YNN News, Sept. 12,
2003. Copy supplied.

Joseph Spector, “Death Penalty Spotlighted,” Rochester Democrat and Chronicle,
Aug. 24, 2003. Copy supplied.

Michael Zeigler, “No Bail for Lawyer Charged in Wife’s Slaying,” Rochester
Democrat and Chronicle , Aug. 19,2003. Copy supplied.

James Goodman, “Street Meeting Calls for Unity, Involvement,” Rochester
Democrat and Chronicle, Aug. 10,2003. Copy supplied.

Donna Jackel, “Winebrenner is Arraigned,” Rochester Democrat and Chronicle ,
Aug. 9, 2003. Copy supplied.

Greg Livadas, “Husband Indicted in Killing,” Rochester Democrat and Chronicle,
Aug. 8, 2003. Copy supplied.

Cristina Domingues, “Garrett Drug Case Dismissed,” YNN News, Aug. 1, 2003.
Copy supplied.

Patrick Flanigan, “Garrett Indicted in Slaying,” Rochester Democrat and
Chronicle, July 31, 2003. Copy supplied.

Gary Craig, “ Analysis,” Rochester Democrat and Chronicle , July 3 1 , 2003. Copy
supplied.

Staff, “Taddeo Challenges Green,” YNN News, July 29, 2003. Copy supplied.

Joseph Spector, “Mayor: GOP Risks Backlash,” Rochester Democrat and
Chronicle, July 27, 2003. Copy supplied.

Gary Craig, “Taddeo Calls for Death Penalty,” Rochester Democrat and
Chronicle, July 26, 2003. Copy supplied.

Staff, “Prosecution Rate Debated,” J7 VN News, July 25, 2003. Copy supplied.

Gary Craig, “Debate Rages Over Release,” Rochester Democrat and Chronicle,
July 22, 2003. Copy supplied.

Gary Craig, “Drug Violence Battle Shifts,” Rochester Democrat and Chronicle,
July 21, 2003. Copy supplied.

Rick Armon, “Ex -Judge Rips DA’s Office,” Rochester Democrat and Chronicle,
July 21, 2003. Copy supplied.

62

968

Staff, “DA Controversy Continues,” YNN News, July 21 , 2003. Copy supplied.

Cristina Domingues, “Taddeo: DA's Office Unprepared,” YNN News, July 20,
2003. Copy supplied.

Jeffrey Blackwell and Patrick Flanigan, “Correction - East End Copes with
Crimes,” Rochester Democrat and Chronicle, July 12, 2003. Copy supplied.

Jessica Williams, “Suspects Nabbed in Murder,” YNN News, July 1 1, 2003. Copy
supplied.

Greg Livadas, “Victim’s Family Condemns Killer,” Rochester Democrat and
Chronicle, June 25, 2003. Copy supplied.

Michael Zeigler, “Murder Sentencing Delayed,” Rochester Democrat and
Chronicle, June 20, 2003. Copy supplied.

Patrick Flanigan, “Police Unveil Anti-Drug Team,” Rochester Democrat and
Chronicle, June 6, 2003. Copy supplied.

Michael Zeigler, “Man Guilty of Fatal Bludgeoning,” Rochester Democrat and
Chronicle, June 3, 2003. Copy supplied.

Meaghan M. McDermott, “Johnson, Mike Green Lead Democratic Slate,”
Rochester Democrat and Chronicle , May 18, 2003. Copy supplied.

Michael Zeigler, “Bail Denied for Suspect in Girl’s Drive-By Murder,” Rochester
Democrat and Chronicle, May 2, 200?. Copy supplied.

Joseph Spector, “Switching Parties Raises Debate,” Rochester Democrat and
Chronicle, Apr. 15, 2003. Copy supplied.

Joseph Spector, “Correction - Ex-Prosecutor to Vie for DA Nomination,”
Rochester Democrat and Chronicle, Apr. 10,2003. Copy supplied.

Gary Craig, “Relin’s Top Deputy Aims for DA Post,” Rochester Democrat and
Chronicle, Apr. 5, 2003. Copy supplied.

Joseph Spector, “Relin Bowing Out as DA,” Rochester Democrat and Chronicle,
Apr. 4, 2003. Copy supplied.

Rick Armon, “Local Convict Seized in Texas,” Rochester Democrat and
Chronicle, Mar. 26, 2003. Copy supplied.

Joseph Spector, “Green Might Run for DA as Democrat,” Rochester Democrat
and Chronicle, Mar. 23, 2003. Copy supplied.

James Goodman, “Monroe Ramps Up Arrests of Deadbeat Parents,” Rochester
Democrat and Chronicle, Mar. 21, 2003. Copy supplied.

63

969

Lauren Stanforth, “Selection of Comfort Jury Taking Time,” Rochester Democrat
and Chronicle, Feb. 28, 2003. Copy supplied.

Joseph Spector, “Relin Decision Builds Suspense,” Rochester Democrat and
Chronicle, Feb. 16,2003. Copy supplied.

Patrick Flanigan, “1 6-Year-Old Charged in Slaying,” Rochester Democrat and
Chronicle , Feb. 6, 2003. Copy supplied.

Gary McLendon, “City Man Charged in Nov. Murder,” Rochester Democrat and
Chronicle, Jan. 11,2003. Copy supplied.

Patrick Flanigan, “8 Tied to Suburban Theft Ring, Police Say,” Rochester
Democrat and Chronicle , Jan. 10,2003. Copy supplied.

Staff, “News Beat,” Rochester Democrat and Chronicle, Jan. 9, 2003. Copy
supplied.

Greg Livadas, “Man Gets Up to Life in Killing of Wife,” Rochester Democrat
and Chronicle, Jan. 3, 2003. Copy supplied.

Jeffrey Blackwell, “Tots’ Deaths Taint New Year,” Rochester Democrat and
Chronicle, Jan. 3, 2003. Copy supplied.

Corydon Ireland, “DW! Patrols Roving Tonight,” Rochester Democrat and
Chronicle, Dec. 31, 2002. Copy supplied.

Joseph Hill, “The Accus?' 1 Takes the Stand,” YNN News, Dec. 9, 2002. C: ~y
supplied.

“Prosecutors Clear Police, Medical Officials in Death of Man in Custody,”
Associated Press Stale and Local Wire, Nov. 28, 2002. Copy supplied.

Alan Morrell, “Officials Cleared in Death of Rogers,” Rochester Democrat and
Chronicle, Nov. 28, 2002. Copy supplied.

Joseph Hill, “DA Clears R.PD in Rogers Death,” YNN News, Nov. 27, 2002.

Copy supplied.

Greg Livadas, “Medical Examiner Reports on Death,” Rochester Democrat and
Chronicle, Nov. 25, 2002. Copy supplied.

Greg Livadas, “Parma Killer Gets 30 to Life,” Rochester Democrat and
Chronicle, Nov. 1,2002. Copy supplied.

Michael Zeiglcr, “Neighbor Guilty of Woman’s Murder," Rochester Democrat
and Chronicle, Oct. 10, 2002. Copy supplied.

64

970

Michael Zeigler, “Murder Defendant’s Letter Told of ‘Very Big Trouble’,”
Rochester Democrat and Chronicle, Oct. 5, 2002. Copy supplied.

Joseph Hill, “Dad Says Trial Unfair,” YNN News, Oct. 4, 2002. Copy supplied.

Michael Zeigler, “Trial Due in Parma Woman’s Death,” Rochester Democrat and
Chronicle, Oct. 1, 2002. Copy supplied.

Dan Smith, “Bus Driver’s Killer Sentenced,” YNN News , Aug. 27, 2002. Copy
supplied.

“Man Convicted of Bus Driver Slaying,” Associated Press State and Local Wire,
July 20, 2002. Copy supplied.

“Married Couple Charged with Killing Pregnant Woman,” Associated Press State
and Local Wire , July 20, 2002. Copy supplied.

Jessica Williams, “Married Couple Admits Guilt,” YNN News, July 20, 2002.
Copy supplied.

Michael Zeigler, “Judge Rejects Defense Request in Bus Slaying,” Rochester
Democrat and Chronicle, July 10, 2002. Copy supplied.

Jessica Williams, “Irondequoit Man Gets Maximum,” YNN News, June 3, 2002.
Copy supplied.

Dan Smith, “Tyshaun Killer Sentenced,” YNN News, May 20, 2002. Copy
supplied.

Michael Zeigler, “Jones Guilty in Woman’s Killing,” Rochester Democrat and
Chronicle, May 18,2002. Copy supplied.

Michael Zeigler, “Case May Be Dismissed against Ex-Prosecutor,” Rochester
Democrat and Chronicle. Apr. 1 2, 2002. Copy supplied.

Meaghan M. McDermott, “Correction — DNA Helps Nab Suspect in Rapes,”
Rochester Democrat and Chronicle, Apr. 6, 2002. Copy supplied.

Seth Voorhees, “Man Charged in ITiree Rapes,” YNN News, Apr. 5, 2002. Copy
supplied.

Wendy Mills, “A Plea for Witness Protection,” YNN News, Mai. 29, 2002. Copy
supplied.

Michael Zeigler, “Jury Convicts Tyshaun Killer,” Rochester Democrat and
Chronicle, Mar. 15,2002. Copy supplied.

Michael Zeigler, “New Judge to Begin Tyshaun Trial,” Rochester Democrat and
Chronicle, Mar. 12,2002. Copy supplied.

65

971

Greg Livadas, “Koon’s Killer Won’t Alter Name,” Rochester Democrat and
Chronicle, Feb. 28, 2002, Copy supplied.

Michael Zeigler, “Plea is Not Guilty in Parma Murder,” Rochester Democrat and
Chronicle, Feb. 26, 2002. Copy supplied.

Michael Zeigler, “DA May Again Try to Indict Clerk,” Rochester Democrat and
Chronicle, Feb. 23, 2002. Copy supplied.

Dolores Orman, “Man Indicted in Slaying,” Rochester Democrat and Chronicle,
Feb. 22, 2002. Copy supplied.

Alan Morrell, “Inmate Charged in Parma Homicide,” Rochester Democrat and
Chronicle, Feb. 1 6, 2002. Copy supplied.

Michael Zeigler, “Correction - Man Denies Murder Charge,” Rochester
Democrat and Chronicle, Feb. 5, 2002. Copy supplied.

Staff, “A.M. Digest,” Rochester Democrat and Chronicle, Jan. 25, 2002. Copy
supplied.

Michael Zeigler, “Inquiry of Cop Cited in Bid for New Trial,” Rochester
Democrat and Chronicle, Jan. 19, 2002. Copy supplied.

John Kohlstrand and Mcaghan M. McDermott, “Indictment Issued in Killing,”
Rochester Democrat and Chronicle , Jan. 17, 2002. Copy supplied.

Meaghan M. McDermott, “Correction - Murder Charged in Ward Case,”
Rochester Democrat and Chronicle, Jan. 1 1, 2002. Copy supplied.

Michael Zeigler, “Defendant Held Without Bail in Fatal Assault Case,” Rochester
Democrat and Chronicle, Jan. 8, 2002. Copy supplied.

Michael Zeigler, “Relatives Defend Man Charged in Bus Death,” Rochester
Democrat and Chronicle, Dec. 5, 2001 . Copy supplied.

Michael Zeigler, “Addict Who Hurt Cop Sentenced,” Rochester Democrat and
Chronicle, Oct. 16,2001. Copy supplied.

Michael Zeigler, “Murderer Gets 25 More Years for Brutal Rape,” Rochester
Democrat and Chronicle, Oct. 4, 2001 . Copy supplied.

Michael Zeigler, “Man Admits Hitting Officer,” Rochester Democrat and
Chronicle, Sept. 29, 2001. Copy supplied.

Jessica Williams, “Wood Pleads Guilty,” YNN News, Sept. 28, 2001. Copy
supplied.

66

972

Michael Zeigler, “Jury Convicts Killer of Rochester Rape,” Rochester Democrat
and Chronicle, Sept. 12, 2001. Copy supplied.

Michael Zeigler, “Defendant in Bookstore Killing Denied Bail,” Rochester
Democrat and Chronicle, Aug. 28, 2001. Copy supplied.

Jessica Williams, “Not Guilty Plea from Suspect,” YNN News, Aug. 27, 2001 .
Copy supplied.

Alan Morrell, ‘“My Son’s Life Had to Have Meaning Behind It’,” Rochester
Democrat and Chronicle, July 31 , 200 1 . Copy supplied.

Michael Zeigler, “Wright Accused of Intentional Murder,” Rochester Democrat
and Chronicle, July 25, 2001. Copy supplied.

Michael Zeigler and Patrick Flanigan, “Tyshaun’s Slaying Raises Issues of
Violence, Justice,” Rochester Democrat and Chronicle, July 13, 2001. Copy
supplied.

Liz F. Kay, “Injured City Officer Goes Home,” Rochester Democrat and
Chronicle, July 12, 200 1 . Copy supplied.

Alan Morrell, “DA Needs Additional DW1 Prosecutors, Group Says,” Rochester
Democrat and Chronicle, June 22, 2001. Copy supplied.

Michael Zeigler, “Victim’s Sister Rebukes Murderer,” Rochester Democrat and
Chronicle, June 1, 2001. Copy supplied.

Jim Aroune, “Teen Convicted of Killing Two,” YNN News, June 1, 2001. Copy
supplied.

Seth Voorhees, “Owens Receives Life in Prison,” YNN News, May 31, 2001.
Copy supplied.

Michael Zeigler, “Owens Guilty of Two Murders,” Rochester Democrat and
Chronicle, Apr. 20, 2001. Copy supplied.

Michael Zeigler, “Owens Jurors Weighing Evidence,” Rochester Democrat and
Chronicle, Apr. 19,2001. Copy supplied.

Michele Locastro Rivoli, “DA Says 100 DWI Cases Bungled,” Rochester
Democrat and Chronicle, Feb, 18, 2001. Copy supplied.

Michele Locastro Rivoli, “Big Gaps Found in ‘Sealed’ Records,” Rochester
Democrat and Chronicle, Feb. 13, 2001. Copy supplied.

Patrick Flanigan, “Pastor Blasts Driver’s Penalty,” Rochester Democrat and
Chronicle, Feb. 10,2001. Copy supplied.

67

973

Donna Jackel, “Crusader Relates Death-Row Misery,” Rochester Democrat and
Chronicle, Feb. 8, 2001. Copy supplied.

Michael Zeigler, “A Pause in Owens’ Capital Case,” Rochester Democrat and
Chronicle, Jan. 10,2001. Copy supplied.

Patrick Flanigan, “3 Deputies Face Rape Allegation,” Rochester Democrat and
Chronicle, Jan. 10,2001. Copy supplied.

Gary Craig, “Relin Crosses Party Lines for Assistant D.A.,” Rochester Democrat
and Chronicle, Dec. 22, 2000. Copy supplied.

Michael Zeigler, “Capital Murder Trial May Face Long Delay,” Rochester
Democrat and Chronicle, Oct. 26, 2000. Copy supplied.

Michael Zeigler, “Grand Jury Indicts Rapist by DNA,” Rochester Democrat and
Chronicle, Sept. 23, 2000. Copy supplied.

Michael Zeigler, “Santiago Trial Starts Penalty Phase Today,” Rochester
Democrat and Chronicle, June 1 4, 2000. Copy supplied.

Michael Zeigler, “Death Penalty Sought in Murder Trial,” Rochester Democrat
and Chronicle , Jan. 25, 2000. Copy supplied.

Michael Zeigler, “Mateo’s Sentence Grows by 75 Years,” Rochester Democrat
and Chronicle, Nov. 9, 1999. Copy supplied.

James Goodman, “Mateo Convicted in 3 Killings,” Rochester Democrat and
Chronicle, Oct. 16, 1999. Copy supplied.

Michael Zeigler, “Mateo Faces Another Murder Trial,” Rochester Democrat and
Chronicle, May 21, 1999. Copy supplied.

Dolores Orman, “Man Charged With Conspiracy to Kill,” Rochester Democrat
and Chronicle, Apr. 22, 1999. Copy supplied.

Bob Marcotte, “Just Ask,” Rochester Democrat and Chronicle, Jan. 1 1, 1999.
Copy supplied.

Ben Dobbin, “Suspected Multiple Killer Draws the Death Penalty,” Associated
Press, Dec. 17,1998. Copy supplied.

Ben Dobbin, “Man Convicted in Abduction-Slaying Could Get the Death
Penalty,” Associated Press, Dec. 4, 1998. Copy supplied.

Television Interviews & News Conferences

68

974

YNN News, Dec. 14, 2010. Video available at
http://fingerlakes.vnn.com/conten t/ 526763/guiltv-verdict-in-police-officer-

shooting-trial/ .

News 10 NBC, Dec. 9, 2010. Video at
httn://www.whec.com/article/stories/S 1 874684.sh t ml?cat=0 .

YNN News, Dec. 8, 2010. Video available at

http://fingerlakes.vrm.com/content/526146/testimonv-begins-in-trial-of-alleaed-

con-shooter/ .

News 10 NBC, Dec. 8, 2010. Video available at
h ttn://www. whec.com/article/stories/Sl 8721 71.shtml?cat=0 ,

YNN News, July 16, 2010. Video available at
http:// r ochester.vnn.com/content/top stories/5 1 1 226/chad-rahn-
indicte d/?ap=l &MP .

YNN News, July 13, 2010. Video available at

http://fingerlakes.VTm.com/content/510885/schumer-gives-d-a~mike-green-nod-

for-iudge-seat/ .

News 10 NBC, July 6, 2010. Video available at
http://www.whec.com/artiele/stories/Sl 63955 1 .shtml?cat~-0# .

News 10 NBC, June 25, 2010. Video available at
http://www.whec.com/article/stor ies/S l 624257. shtml?cat^0fl .

News Conference coverage on YNN, June 25, 2010. Video available at
hnp://fingerlakes. vnn.com/content/all news/rochester/5091 73/suspect-chargcd -in-
greece-triple-homicide/ .

YNN News, May 17, 2010. Video available at

http://fing e rlakes.yn n. com/contcnt/505059/top-court-rules-sex-offenrters-can-he-

he ld-p as t-term/ .

YNN News, May 7, 2010. Video available at

http://fingerlakes.vnn.com/content/504034/accused-dav-care-worker-faces-new-

charge /.

News 10 NBC, Apr. 29, 2010. Video available at
http://www.whec.com/article/stories/S l 53 5663.shtml?cat=0# .

YNN News, Apr. 29, 2010. Video available at

http://fingerlakes.vnn.com/content/503297/rahn-guiltv-on-7-of-9-charges/ .

News 10 NBC, Apr. 28, 2010. Video available at
http://www.whee.eom/article/stories/S 1 533863,shtml?cat=0# .

69

975

YNN News, Apr. 28, 2010. Video available at

http://fmg e rlakes.vnn.com/content/503 142/man-convicted-of-killinp-hilton-
woman-walks-free/.

YNN News, Apr. 5, 2010. Video available at

http : //fingerl a kes.vnn.c om/c ontent/500762/manv-call-for-exDansion-of-state-dna-

database/ .

YNN News, Apr. 1, 2010. Video available at

http://fingerlakes.vrm.com/content/500497/iames-smith-cleared-of-charges-in-

rob utrad-probe/ .

News conference coverage, Mar. 30, 2010 via multiple outlets.

WIVB: http.V/www. wivh.com/dpp/sports/ I ndoor-football-nlaver-busted-
for-drugs

YNN: http:// fing erlakes.vnn.com/cnnt e nt/500236/more-arrests-Dending-
in-maior-drug-bust/

YNN: httD://tmgerlakes.vnn.com/content/500220/prescription-drug-ring-
arrests— tin-of-the-iceberg-/

News 10, NBC, Mar. 29, 2010. Video available at
http://www,whec.com/article/stories/S1490049-shtml?cat=0# .

YNN News, Mar. 26, 2010. Video available at

http://fingerlak e s. vnn.com/content/ 4 9991 6 /parker-3PPears-in-court iurina-
pretrial-hearing/ .

YNN News, Mar. 13,2010. Video available at

http://fingerlakes.vnn.com/content/498604/court-appear a nce-for-on e- of-tw o-men-
accu sed-in-police-sh ooting/ .

News 10 NBC, Feb. 4, 2010. Video available at
http://www.w h ec.com/article/stories/Sl 400639.shtml?cat=~0tf .

YNN News, Dec. 30, 2009. Video available at

http://rochester.vnn.com/content/top stories/491 8 1 1/monroe-da-responds-to-
inspe ctor- g eneral-report/ .

YNN News, Dec. 21, 2009. Video available at

http://fingerlakes.vnn.com/content/491 1 3 5/d-a— green — less er-charge-ag ai nst-
roderick-scott-reiected/ .

YNN News, Dec. 13, 2009. Video available at

http://fingerlakes.vnn.com/conten t/ 490303/garcia-res p onds-to-vnn-interview-

request/ .

70

976

YNN News, Dec. 7, 2009. Video available at

http://fingerlakes.vrm.com/content/489678/iniured-ofFicer-released-from-hosDital-

-m an-indicted-for-shootin c/.

YNN News, Oct. 7, 2009. Video available at

http://fingerlakes.vnn.com/con t ent/484442/former-denutv - monroe-countv-

executive-indicted/ .

YNN News, Aug. 31, 2009. Video available at

h ttp://fin g erlakes.vnn.com/con te nt/481 202/antlionv-dtponz i o-testifies-in-tvauan-
rivera-trial/ .

YNN News, Aug. 27, 2009. Video available at

http : //finaer l akes.vnn . com/content/480710/iurv- s eated-in-trial-of-tvauan-rivera/ .
YNN News, Aug. 25, 2009. Video available at

httn://fingerlakes. vnn.com/con t ent/480613/iurv-selection-continues-in-police-
of ficer-shooting-case /.

YNN News, Aug. 24, 2009. Video available at

htlp://fingerlakes.vnn.com/content/4 8 0547/ f ormer-greece-police-sergea nt-
YNN News, Aug. 21, 2009. Video available at

http://fingerlakes.vnn.com/content/480386/cross-countrv-hike-ride-raises-

a wareness-about-violence/ .

YNN News, Aug. 19, 2009. Video available at

http: //finge r lakes.vnn.com/content/480236/gTeece-police-chief-ai-raigned-on-

felonv-charge /.

News conference coverage at YNN News, Aug. 18, 2009. Video available at

http://fingerlakes.vnn.com/content/48008 8 /sheritT-s-office-cracking-down-on-

dwi/ .

YNN News, Aug. 14,2009. Video available at

http://fmgerlakes.vnn.com/cont e nt/4797 91 /mom-charged-in-death-of-child-in-

fatal-fire-last-september/ .

YNN News, July 28, 2009. Video available at

http://fingerlakes .y nn.com/content/478364/nroDosed-law-would-focus-on -

background-checks-for-applicants/ .

YNN News, July 21, 2009. Video available at

httD://finge r lakes.vnnxom/content/477826/rivera-s-defense-attemnts-to-suppress-

evide nce/.

71

977

YNN News, July 7, 2009. Excerpts available at

http://fmger I akes.vnn.com/content/476575/ - dear-iohn--camDaign-focuses-on-
1 yell-ave— nei ghborhood/ .

YNN News, June 19, 2009. Video available at

httP - 7/fingerlakes. vnn. com/conte nt /47521 1 /brooks— countv-will-get-robutrad-
monev-back/ .

YNN News, June 10, 2009. Video available at

http://fingerlakes.vnn.com/contem/474362/teen-accused-of-shooting-cop-

appeared-in-court/ .

Interview for “Voices of Violence: Your Chance to Change,” a video to present to
at-risk youths, June 2009. Video supplied.

YNN News, May 28, 2009. Video available at

http://fingerlakes.vnn.com/content/473216/some-want-provision-in - rockefeller-

drug-law-reforms-repealed/ .

WHAM-ABC, May 27, 2009. Video available at

http://www.l3wham.com/mediacenter/local.aspx?videoId=I9I3533&navCatId=3
89-mike green.

YNN News, May 19, 2009. Video available at

http://fingerlakes.vnn.com/content/370159/greece-police- of ficer-faces-charges/ .
YNN News, May 5, 2009. Video available at

http://fingerlakes.vnn.com/content/471978/greece-police-offieer -d rrested-again/’ .
YNN News, Apr. 28, 2009. Video available at

http://fingerlak es.ynn .eom/ c ontent/471749/eommunitv-tip s-lea d-to-gang-aaests/ .
YNN News, Apr. 17, 2009. Video available at

http://f i ngerl akes.y nn.eom/content/471455/scott-indicted-on-lesser-charge.s/ .

YNN News, Apr. 9, 2009. Video available at

http://fingerlakes.vnn.com/content/471200/prand-iurv-indicts- r oderick-scot t/.
YNN News, Apr. 8, 2009. Video available at

http://fingerlakes.vnn.com/content/471 174/paai ne llo-roderick-scott-remorseful/ .
YNN News, Apr. 6, 2009. Video available at

http://fingerlakes.vnn.com/content / 471Q91/da — s elf-de f ense-claim-won-t-flv/ .
YNN News, Apr. 1,2009. Video available at

h ttp://fingerlakes.vnn.com/content/470913/falal-dwi-crash-mav-go-tn- gra nd-iurv/
(1 was not directly quoted for this news piece, hut was interviewed for it).

72

978

YNN News, Apr. 1, 2009. Video available at

http://fingerlakes.vim.com/eontent/470902/diDonzio-s-accused-shooter-in-eourt/ .

News conference coverage on YNN News, Mar. 27, 2009. Video available at

http://fmgerlakes.vnn.com/content/470735/rockefeller-dnjg-laws-reneal-moves-

forward/ .

YNN News, Mar. 16, 2009. Video available at

http://fingerlakes.vnn.com/con t ent/470363/ioserih-found-guiltv-on-all-counts/ .
YNN News, Feb. 3, 2009. Video available at

h ttp://finger lakes.v nn.com/content/369082/teen-nleads-not-guiltv-in-cop-
sh opting/ .

YNN News, Feb. 1, 2009. Video available at

http ://fingerlakes. vn n .com/ c onte n t/369026/crime-lab-helps-cop-shooting-probe/ .

News conference coverage on YNN News, Nov. 17, 2008. Video available at
http://fingerlakes.vnn.com/content/366897/monroe-countv-opens-new -c rime-lab /.

YNN News, Oct. 23, 2008. Video available at

http://fingerlakes.vnn.com/content/366138/leading-prosecutor-leave.s-da-office/ .
YNN News, May 22, 2008. Video available at

htt p://fmgerlakes.vrm.com/con t ent/361491/new-lab-receives-state-bonst/ .
WHAM-ABC, Apr. 29, 2008. Video available at

http://www.l 3wham.com/mediacenter/’ oeal.aspx?vidr- TJ =191 1897&navCatId=3
89-mike green.

YNN News, Mar. 19, 2008. Video available at

http://fingerlakes.vnn.com/eontent/359379/local -tis sue-lheft-cases-move-ahea d/.
YNN News, Mar. 17, 2008. Video available at

http : //fingerlakes.vnn. c om/content/3S9294/5afe-surrender-offered-to-lugitives/ .
YNN News, Feb. 28, 2008. Video available at

http://fmgerlakes.vnn.com/content/358747/monroe-tareets-underage-drinklng/ .
YNN News, Nov. 12,2007. Video available at

ht tp://fingerlakes.vnn . com/content/355362/cold-case-suspect-dies-in-custody/ .
YNN News, Nov. 7, 2007. Video available at

httD://fingerlakes.vnn.coni/content/355245/more-t ha n-one-green-won-tuesdav/ .
YNN News, Oct. 25, 2007. Video available at

http://fingerlakes.v n n.com/content/354769/can-svstem-tolerate— zer o- detail-/ .

73

979

YNN News, Oct. 4, 2007. Video available at

http://fingerlakes. vnn.com/content/354035/-numbers— stoke-m onr oe-da-race-/ .
YNN News, Oct. 3, 2007. Video available at

http ://fingerla kes.vnn.com/content/353992/fl-man-linked-to-1976-child-killing/ .
YNN News, Sept. 9, 2007. Video available at

http://fingerlakes.vnn.com/content/353096/dwi-laws-toughen-in-new-vork-s tate/.
YNN News, July 20, 2007. Video available at

http://fingerlakes.vnn.com/content/35I342/da-to- prob e-monroe-water-authoritv/ .
YNN News, June 5, 2007. Video available at

http://fingerl ak es.vnn .co m/content/349815 / curran-faces-new -f elonv-charges/ .
YNN News, May 30, 2007. Video available at

http://fingerlakes.vnn.com/content/349613/monroe-da-bonus-under-review-/ .
YNN News, May 24, 2007. Video available at

http://fingerlakes.vnn . com/conten t/3 4944 1 /iudge- el iminates-plea-deal-for-man/ .
YNN News, May 17, 2007. Video available at

http://fingerlakes.vnn.com/content/349 1 7 1 /seven-charged-with-bodv-harvesting-/ .
YNN News, May 2, 2007. Video available at

http://fingerlakes.vnn.com/content/348702/ehoir-sings-out-against-dwi-deal/ .
YNN News, May 2, 2007. Video available at

http ://fi ngerlakes.vnn .co m/content/348645/ex-deputv-cleared-of-manslaughter/ .
YNN News, Apr. 19, 2007. Video available at

http://fingerl a kes.vrm.com/co ntent/34823 2/schools-police-watch-the-web/ .

News 8 at 1 1 on WROC-CBS, Apr. 19, 2007. Transcript supplied.

The Ten O’clock News on WUHF-FOX, Feb. 22, 2007. Transcript supplied.

News conference coverage on YNN News, Feb. 22, 2007. Video available at
http://fineerlakes.vnn . com/content/346403/proposals-target-online-predators/ .

News 10 at Six on WHEC-NBC, Feb. 20, 2007. Transcript supplied (while not
directly quoted, I was interviewed for the piece).

Newssource 13 at 5pm on WHAM-ABC, Feb. 20, 2007. Transcript supplied.
News 8 Now at 6pm on WROC-CBS, Feb. 1 5, 2007. Transcript supplied.

74

980

YNN News, Feb. 1 3, 2007. Video available at

http://fingerlakes.vnn.com/content/346141/-beast-who-must-be-caged~

sentence d./

Newssource 13 at 6pm on WHAM-ABC, Jan. 30, 2007. Transcript supplied
(while not directly quoted, I was interviewed for the piece).

YNN News, Jan. 26, 2007. Video available at

http://fingerlakes.vnn.com/content/345622/school-sentrv-faces-new-accusations/ .

News 10 Live at Five on WHEC-NBC, Jan. 1 0, 2007. Transcript supplied (while
not directly quoted, I was interviewed for the piece).

Wake Up Rochester on WROC-CBS, Nov. 22, 2006. Transcript supplied.

YNN News, Nov. 21, 2006. Video available at

ht tp://fingerlakes.vnn .c om/content/343858/gun-law-contains-loophole/ .

News 8 at 1 1pm on WROC-CBS, Nov. 16, 2006. Transcript supplied (while not
directly quoted, I was interviewed for the piece).

Newssource 13 at 5pm on WHAM-ABC, Nov. 15, 2006. Transcript supplied.

News 8 Now at 6pm on WROC-CBS, Nov. 15, 2006. Transcript supplied.

Wake Up Rochester on WROC-CBS, Nov. 10, 2006. Transcript supplied.

News 10 at Six on WHEC-NBC, Nov. 1, 2006. Transcript supplied.

News 8 Now at 5pm on WROC-CBS, Oct. 18, 2006. Transcript supplied (while
not directly quoted, I was interviewed for the piece).

News 10 Today on WHEC-NBC, Sept. 28, 2006. Transcript supplied (while not
directly quoted, I was interviewed for the piece).

News 10 Live at Five on WHEC-NBC, Sept. 14, 2006. Transcript supplied
(while not directly quoted, I was interviewed for the piece).

Wake Up Rochester on WROC-CBS, Sept. 13, 2006. Transcript supplied.

News 8 at 1 lpnr on WROC-CBS, Sept. 12, 2006. Transcript supplied.

Wake Up Rochester on WROC-CBS, Aug. 16, 2006. Transcript supplied (while
not directly quoted, I was interviewed for the piece).

Newssource 1 3 at 6pm on WHAM-ABC, July 1 7, 2006. Transcript supplied.

Interviewed for a segment of Cold Case Files called “Innocence Stolen,” A&E,
aired July 8, 2006. I have been unable to obtain a copy of this recording.

75

981

The Ten O’clock News on WUHF-FOX, June 21, 2006. Transcript supplied.
News 8 Now at 6pm on WROC-CBS, June 21, 2006. Transcript supplied.
Newssource 1 3 at 1 1 on WHAM-ABC, May 7, 2006. Transcript supplied.

The Ten O’clock News on WUHF-FOX, May 5, 2006. Transcript supplied.
YNN News, Apr. 10,2006. Video available at

http://fingerlakes.vnn.com/contentQ36717/roinister-murder-susnects-in-court/ .

News 8 at 1 1pm on WROC-CBS, Mar. 1 5, 2006. Transcript supplied.

News 10 at Six on WHEC-NBC, Mar. 3, 2006. Transcript supplied.

News 10 at Six on WHEC-NBC, Feb. 15, 2006. Transcript supplied.

News 8 Now at 5pm on WROC-CBS, Jan. 5, 2006. Transcript supplied.

News 10 at Eleven on WHEC-NBC, Dec. 21, 2005. Transcript supplied.

News 10 at Six on WHEC-NBC, Dec. 20, 2005. Transcript supplied.

News 10 at Six on WHEC-NBC, Dec. 10, 2005. Transcript supplied.

News 8 Now at Noon on WROC-CBS, Nov. 1 7, 2005. Transcript supplied.

News 8 Now at 6pm on WROC-CBS, Nov. 16, 2005. Transcript supplied.

News 10 Live at Five on WHEC-NBC, Nov. 16, 2005. Transcript supplied.

13. Judicial Office : State (chronologically) any judicial offices you have held, including
positions as an administrative law judge, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.

I have not held judicial office.

a. Approximately how many cases have you presided over that have gone to verdict
or judgment?

i. Of these, approximately what percent were:

jury trials: %

bench trials: % [total 100%]

civil proceedings: %

criminal proceedings: % [total 1 00%]

76

982

b. Provide citations for all opinions you have written, including concurrences and
dissents.

c. For each of the 10 most significant cases over which you presided, provide: (1) a
capsule summary of the nature the case; (2) the outcome of the case; (3) the name
and contact information for counsel who had a significant role in the trial of the
case; and (3) the citation of the case (if reported) or the docket number and a copy
of the opinion or judgment (if not reported).

d. For each of the 10 most significant opinions you have written, provide: (1)
citations for those decisions that were published; (2) a copy of those decisions that
were not published; and (3) the names and contact information for the attorneys
who played a significant role in the case.

e. Provide a list of all cases in which certiorari was requested or granted.

f. Provide a brief summary of and citations for all of your opinions where your
decisions were reversed by a reviewing court or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings. If
any of the opinions listed were not officially reported, provide copies of the
opinions.

g. Provide a description of the number and percentage of your decisions in which
you issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored.

h. Provide citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, provide copies of the opinions.

i. Provide citations to all cases in which you sat by designation on a federal court of
appeals, including a brief summary of any opinions you authored, whether
majority, dissenting, or concurring, and any dissenting opinions you joined.

14. Recusal: If you are or have been a judge, identify the basis by which you have assessed
the necessity' or propriety of recusal (If your court employs an "automatic" recusal system
by which you may be recused without your knowledge, please include a general
description of that system.) Provide a list of any cases, motions or matters that have
come before you in which a litigant or party has requested that you recuse yourself due to
an asserted conflict of interest or in which you have recused yourself sua sponte. Identify
each such case, and for each provide the following information:

a. whether your recusal was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any other person or interested party; or if you
recused yourself sua sponte;

b. a brief description of the asserted conflict of interest or other ground for recusal;

77

983

c. the procedure you followed in determining whether or not to recuse yourself;

d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any
other ground for recusal.

15. Public Office. Political Activities and Affiliations :

a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, state chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.

Monroe County District Attorney. This is an elected position with a four year
term. I served from January 1, 2004 through the end of 2007, and am currently
serving my second term, which started January 1, 2008 and will conclude at the
end of 2011.

I have never had an unsuccessful candidacy for elective office. I submitted an
application for the position of Magistrate in the United States District Court,
Western District of New York in or about 1 995, but was not selected for the
position.

b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election conuuittee. If you have ever
held a position or played a role in a political campaign, identity the particulars of
the campaign, including the candidate, dates of the campaign, your title and
responsibilities.

I was a campaign volunteer for New York State Assemblyman Gary Proud in his
reelection campaign in 1982. My primary duty was collecting petition signatures.

16. Legal Career: Answer each part separately.

a. Describe chronologically your law practice and legal experience after graduation
from law school including:

i. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;

I have not served as a clerk to a judge.

ii. whether you practiced alone, and if so, the addresses and dates;

78

984

I have not practiced alone.

iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated and the nature
of your affiliation with each.

1986-1987

Morris and Morris, Attorneys
James E. Morris, Esq.

120 Corporate Woods
Rochester, New York 14623
Associate Attorney (1987)

Law Clerk (1986)

1987 - Present

Monroe County District Attorney’s Office
47 South Fitzhugh Street
Rochester, New York 14614
District Attorney (2004 - Present)

First Assistant District Attorney (2001 — 2003)

Assistant District Attorney (1987 - 2001)

iv. whether you served as a mediator or arbitrator in alternative dispute
resolution proceedings and, if so, a description of the 10 most significant
matters with which you were involved in that capacity.

I have not served as a mediator or arbitrator in alternative dispute
resolution proceedings.

b. Describe:

i. the general character of your law practice and indicate by dale when its
character has changed over the years.

After graduating from law school in 1 986, 1 worked for Morris and
Moms, first as a law clerk and then as an associate attorney. I worked for
attorney James E. Morris, Esq., who maintained a general practice, and my
work focused on real estate closings and plaintiffs’ personal injury work.

Since March 1 987, 1 have worked in the Monroe County District
Attorney’s Office prosecuting criminal cases. I prosecuted misdemeanor
and violation cases in local criminal courts from 1987 to 1989. From 1989
to 1991,1 served as a trial attorney in the felony DWI, County Court, and
Major Felony Bureaus prosecuting and trying felony cases. In 1 992, 1
served as Chief of the DWI Bureau. In this role, I supervised attorneys
prosecuting felony DWI cases and also personally prosecuted DWI-related

79

985

assault and homicide cases. From 1993 to 2000, 1 was the Deputy Chief
of the Major Felony Bureau and the Capital Crimes Prosecutor. I assisted
with the supervision of the attorneys in the Major Felony Bureau and
personally prosecuted capital, homicide, and high-profile violent felony
cases. From 2001 to 2003, 1 served as First Assistant District Attorney. I
supervised the homicide prosecutions and, with the District Attorney,
handled the administration of the office, which was comprised of
approximately 79 attorneys and a total staff of approximately 135. I also
personally prosecuted homicide and other high-profile violent felony
cases. Since 2004, 1 have served as District Attorney of Monroe County.
In addition to my duties running the office and managing our relationships
with other organizations and the public, I continue to personally prosecute
and try homicide and other high-profile violent felony cases.

ii. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.

For the last 23 years, my “client” has been the People of the State of New
York. I have specialized in homicide and violent felony prosecutions.

c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.

I have tried approximately 1 10 felony trials in Monroe County Court and New
York State Supreme Court over the last 21 years, including approximately 40
homicide cases. I have personally prosecuted thousands of cases during that time
period. 1 have appeared in court frequently and on a very regular basis for
arraignments, motion arguments, hearings, trials and sentencing proceedings. For
the first five years of my career in the District Attorney’s Office, my practice was
exclusively litigation. As my career has progressed, I have taken on
administrative responsibilities in addition to my litigation. I have continued to
personally prosecute and try cases throughout my career, including the
prosecution of twelve defendants in nine trials as District Attorney.

i. Indicate the percentage of your practice in:

1. federal courts: 0%

2. state courts of record: 100%

3. other courts: 0 %

4. administrative agencies: 0 %

ii. Indicate the percentage of your practice in:

1. civil proceedings: less than 1%

2. criminal proceedings: more than 99%

80

986

d. State the number of cases in courts of record, including cases before
administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.

I have tried approximately 1 08 felony cases to verdict in Monroe County Court or
New York State Supreme Court. 1 have been sole counsel in 101 of these cases,
lead counsel in six, and co-counsel in one. In addition, I have tried hundreds of
cases to verdict in local criminal courts, including Rochester City Court.

i. What percentage of these trials were:

1. jury: 80%

2. non-jury: 20%

e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any
oral argument transcripts before the Supreme Court in connection with your
practice.

1 have never practiced before the Supreme Court of the United States.

17. Litigation : Describe the ten (10) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give a capsule summary of
the substance of each case. Identify the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case:

a. the date of representation;

b. the name of the court and the name of the judge or judges before whom the case
was litigated; and

c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.

1. People v, Mateo (Monroe County Court, Indictment #914, 1996)

Mateo was charged with first degree murder, attempted first degree murder, kidnapping
and other crimes in relation to three separate but related incidents. He was charged with
a second count of first degree murder for the commission of four murders in a similar
fashion. The first degree murder charges were under a recently enacted capital murder
statute. The trial judge dismissed one first degree murder charge on the grounds that the
murders were not sufficiently similar. That decision was affirmed by the Appellate
Division and the Court of Appeals fPeople v. Mateo . 249 AD2d 894 [4th Dept 1998];
affirmed 93 NY2d 327 [1999]). The trial court also declared a provision of the statute

81

987

dealing with pleas unconstitutional. The Appellate Division granted a declaratory
injunction in favor of the District Attorney (Relin v. Connell . 25 1 AD2d 1 041 [4th Dept,
1998]), the Court of Appeals reversed and affirmed the trial court’s ruling (Hyn es v.
Tomei, 92 NY2d 613 [1998]), and the United States Supreme Court denied certiorari
(Hvnes v. Tomei . 527U.S. 1015 f 19991V

The District Attorney sought the death penalty and the defendant was tried and convicted
of first degree murder and other crimes. The defendant was sentenced to death. The
convictions were affirmed on appeal, but the death sentence was set aside due to a ruling
that a portion of the state statute was unconstitutional. The defendant was sentenced to
life without parole (People v. Mateo . 2 NY3d 383 [2004]). The additional three murders
were tried and the defendant was convicted of the murders. The convictions were
affirmed, (People v. Mateo . 1 1 AD3d 984 [4th Dept, 2004], leave denied 3 NY3d 758).

I was the lead prosecutor, and co-counsel were Hon. Richard Keenan, retired Monroe
County Court Judge (c/o Clerk Monroe County Court, 545 Hall of Justice, Rochester,
New York, 14614, (585) 428-2020), Wendy Lehmann (retired, c/o Monroe County
District Attorney’s Office, 47 South Fitzhugh Street, Rochester, New York, 14614, (585)
753-4334), and Hon. Joanne Winslow (New York State Supreme Court Justice, 545 Hall
of Justice, Rochester, New York, 14614, (585) 428-1892).

The defendant was represented by William Easton of the Capital Defender Office (16
West Main Street, Suite 243, Rochester, New York, 14614, (585) 423-8290).

Former Monroe County Court Judge John Connell (deceased) was the judge for all pre-
trial and trial matters.

2. People v. Szlekovi cs (Monroe County Court, Indictment #915, 1996)

Szlekcvics, who was Mateo’s wife, was indicted for first degree murder, kidnapping and
related charges pertaining to three separate but related incidents. Szlekovics was tried
before a jury, and convicted of second degree murder, kidnapping and other charges. She
was sentenced to 25 years to life on the murder charge and consecutive sentences on the
kidnapping and related charges. The conviction was affirmed on appeal (People v.
Szlekovics. 19 AD3d 1036 [4th Dept, 2005]; leave denied 5 NY3d 810).

I was lead counsel and Kenneth Hyland, Esq. (31 North Main Street, Pittsford, New
York, 14534, (585)-385-2510) and Wendy Lehmann (retired, c/o Monroe County District
Attorney’s Office, 47 South Fitzhugh Street, Rochester, New York, 14614, (585) 753-
4334) were co-counsel.

Szlekovics was represented by Peter Pullano, Esq. (One East Main Street, Suite 711,
Rochester, New York, 14614, (585) 546-1090).

Former Monroe County Court Judge John Connell (deceased) was the judge for all pre-
trial and trial matters.

82

988

3. People v. Laster - (Monroe County Court, Indictment #466, 2000 and Indictment
#622, 2005)

Laster, referred to as the “school girl rapist,” raped three young women on their way to
school in 1 995 and a fourth in 1 997. I was assigned to work with a police task force
investigating the rapes in 1995. DNA testing linked all four rapes to a single perpetrator.
In 2000, to prevent the statute of limitations from running, the three 1 995 rapes were
presented to a Grand Jury and a “John Doe” indictment was filed, charging the individual
with the DNA profile from the rapes, whose name was at the time unknown, with the
rapes. This was the first time this strategy had been used in Monroe County, and one of
the first times it had been used in the state. In 2005, a national CODIS hit linked our
DNA profile from the John Doe case to a rape arrest from Alabama. A Grand Jury
returned a separate indictment on the 1997 rape. The indictments were consolidated for
trial and the defendant was convicted of all charges. His convictions were affirmed on
appeal tPeople v Laster . 78 AD3d 1479 [4 U ' Dept. 2010], [appeal No. 1]; People v Laster .
78 AD3d 1481 [4 lh Dept, 2010], [appeal No. 2]).

I was lead and sole counsel for the District Attorney’s Office throughout this litigation.

Laster was represented by Jill Papemo and Erik Teifke of the Monroe County Public
Defender’s Office (10 North Fitzhugh Street, Rochester, New York, 14614, (585) 753-
4240 (Papemo) and (585) 753-4903 (Teifke)).

Retired Monroe County Court Judge Patricia Marks handled the pretrial and trial
litigation on this case.

4. People v. Owens (New York State Supreme Court, Monroe County, Indictment #414
and #547, 1999)

John Owens, a five-time felon, was charged with two counts of murder in the first degree
and additional crimes for two rape-murders, and two counts of rape in the first degree and
additional crimes for two additional rapes. The District Attorney sought the death
penalty, and the two first degree murders and one of the rapes were tried before a jury.
The defendant was convicted of all three charges after a trial that spanned nine months.
The jury deadlocked on whether to sentence the defendant to death or life without parole
on one count, and on the other count, they decided on a sentence of life without parole.
The defendant was sentenced to life without parole, 25 years to life on the second
(deadlocked) murder, and 25 years on the rape. This conviction was affirmed on appeal
tPeople v, Owens . 5 1 AD3d 1369 [4th Dept 2008]; leave denied 11 NY3d 740). Ala
separate trial, the defendant was convicted of the remaining rape and sentenced to an
additional 25 years. This conviction was affirmed on appeal tPeople v Owens. 50 AD3d
1579 [4th Dept 2008]; leave denied 10NY3d 938).

83

989

I was lead counsel for all of the Owens litigation. In the capital trial, co-counsel was
David Foster, Esq. (Appellate Division, 4 lh Dept., 50 East Avenue, Rochester, New York,
14604,(585)530-3100).

Owens was represented by Michael Murray, Esq. (now deceased), Peter Pullano, Esq.,
(One East Main Street, Suite 711, Rochester, New York, 14614, (585) 546-1090) and
William Easton of the Capital Defender Office (16 West Main Street, Suite 243,
Rochester, New York, 14614, (585) 423-8290).

New York State Supreme Court Justice David Egan presided at the capital trial. New
York State Supreme Court Justice Elma Bellini presided at the rape trial.

5. People v. Rouse, et al. - (Monroe County Court, Indictment #235, 2006)

Defendants were arrested in April of 2006 and charged with the attempted robbery and
murder of a young minister in Rochester. In three separate jury trials, all defendants were
convicted of murder. Two were convicted of murder in the second degree ( People v
Rouse . 74 AD3d 1817 [4" 1 Dept, 2010]; leave denied 15 NY2d 895). The third, who fired
the fatal shot, was convicted of murder in the first degree and sentenced to life without
parole. His conviction was affirmed but the sentence was modified to 25 years to life
(People v Owens . 78 AD3d 1509 [4 th Dept, 2010]).

I was lead and sole trial counsel during this case.

Rouse was represented by Daniel Mastrella (19 West Main Street, Suite, 600, Rochester,
New York, 14614, (585) 232-8810).

Peters was represented by James E. Brown (45 East Main Street, 2 nd Floor, Rochester,
New York, 14614, (585) 423-0246).

Owens was represented by Diane Russell, at the time with the Monroe County Public
Defender’s Office (16 West Main Street, Suite 243, Rochester, New York, 14614, (585)
546-7070).

Monroe County Court Judge Frank Geraci presided over the pre-trial and trial litigation
of all cases.

6. People v. Anderson, et al. (Monroe County Court, Indictment #1050, 2007)

The three defendants were charged with killing a store owner during a robbery.

Defendant Anderson was also charged with an armed robbery of another store.

Defendant Lewis was charged with an unrelated armed street robbery. Anderson was
tried and convicted by a jury of murder and both robberies and sentenced to 50 years to
life. Defendant Woods was tried by a jury and convicted of robbery and murder and
sentenced to 25 years to life. Lewis pied guilty to murder as his trial was scheduled to

84

990

begin and was sentenced to 25 years to life.

I was lead counsel for this case. Co-counsel was Assistant District Attorney Perry
Duckies (47 South Fitzhugh Street, Rochester, New York, 14614, (5S5) 753-4653).

Anderson was represented by Janies Vacca (One East Main Street, Rochester, New York
14614,(585)423-0110).

Woods was represented by Mark Funk (144 Exchange Boulevard, Rochester, New York,
14614,(585)325-4080).

Lewis was represented by Michael Schmitt (36 West Main Street, Suite 500, Rochester,
New York, 14614, (585) 232-1 770).

Monroe County Court Judge Frank Geraci presided over the pre-trial and trial litigation
of all cases.

7. People v. Berger (New York State Supreme Court, Monroe County, Indictment #359,
1985)

Prior to my involvement with this case, defendant Berger was convicted of two murders
and insurance fraud for murdering two people in separate incidents in furtherance of an
insurance fraud scheme he was running. One of the murder convictions was reversed on
appeal (People v. Berger . 1 88 AD2d 1073 [1992]), and 1 was assigned to handle the re-
trial. Evidence from the original trial had been destroyed. After a five-week trial, the
defendant was convicted of murder, with proof consisting largely of testimony from
Berger’s associates and circumstantial proof. He was sentenced to 25 years to life,
consecutive to a life sentence he was serving. The conviction was affirmed on appeal
(People v- Berger. 234 AD2d 980 [4th Dept 1996]; leave denied 89 NY2d 983).

I was lead and only counsel for the District Attorney from the time the case was reversed
on appeal through the defendant’s conviction and sentencing.

The defendant was represented by Robert Simels (Simels was convicted in Federal
District Court, Southern District of New York, and I believe he is currently in federal
prison).

New York State Supreme Court Justice Donald Wisner, who is now retired from his
position on the Appellate Division, Fourth Department, presided over the above trial.

8. People v. Remel t (New York State Supreme Court, Monroe County, Indictment #367,
1994)

Remelt was charged with two counts of murder for shooting his parents multiple times
with a shotgun as they lay in bed. He had a history of psychiatric issues. He was ruled
incompetent to stand trial for a period of time, but was ultimately found to be competent.

85

991

The psychiatric defense was the only serious defense raised. After a lengthy trial that
included extensive cross examination of several defense experts and the presentation of
our experts, the defendant was convicted by a jury of two counts of murder. The
convictions were affirmed on appeal (the sentence was modified) (People v. Remelt .
269AD2d 815 [4th Dept, 2000]; leave denied 95 NY2d 870).

I was co-counsel handling all psychiatric issues. Retired Judge Richard Keenan (c/o
Clerk Monroe County Court, 545 Hall of Justice, Rochester, New York, 14614, (585)
428-2020) was the lead prosecutor.

The defendant was represented by Thomas Kidera, Monroe County Public Defender’s
Office (Ontario County Public Defender, 20 Ontario Street, Canandaigua, New York,
14424,(585)396-4645).

New York State Supreme Court Justice Donald Mark, now retired, presided over the
pretrial and trial matters.

9. People v. Wamev (New York State Supreme Court. Monroe County, Indictment #88.
19963 and People v. Johnson (New York State Supreme Court. Monroe County.
Indictment #644. 20063

Wamey was convicted of murder in the second degree in 1997, in large part based on a
written confession. I was not involved in this prosecution. In December of 2004, after a
motion by Wamey to compel DNA testing was denied, I directed my office to reopen the
case. Evidence was submitted for DNA testing, and in February of 2006, we were
notified of results. In March of 2006, we were notified of a CODIS hit preliminarily
matching a DNA profile from the crime scene to Johnson, an inmate in the New York
State Department of Corrections. Johnson was interviewed several times, had two
attorneys appointed to represent him, provided a DNA sample to confirm the CODIS
results, and ultimately in early May admitted he committed the murder in question. The
day Johnson confessed, the laboratory confirmed the CODIS DNA match. The
information regarding the confession and the DNA match were provided to the defense,
and I joined in a motion to set aside Wamey’s conviction and dismiss the indictment
against him. New York State Supreme Court Justice Thomas Van Strydonck granted the
motion on May 16, 2006 (Index #1996/001393). Johnson pled guilty to murder and
received a sentence of 15 years to life.

I made the decision to reopen the case, supervised the investigation and prosecutions, and
made court appearances in connection with the vacation of the plea and dismissal of the
indictment. Co-counsel for my office were Wendy Lehmann (1802 Jackson Road,
Penfield, New York, 14526, (585) 388-8695), and Larry Bernstein, now retired (he can
be contacted through my assistant Karen Farsace at (585) 753-4334).

Wamey was represented by Peter Neufeld (100 Fifth Avenue, New York, New York,

1001 1, (212) 965-9081) and Donald Thompson (16 West Main Street, Suite 243,
Rochester, New York, 14614, (585) 423-0060).

86

992

Johnson was represented by Scott Young (150 Allens Creek Road, Rochester, New York,
14618,(585)442-0540).

The Justice who heard and granted the motion to set aside the conviction and dismiss the
indictment was NYS Supreme Court Justice Thomas Van Strydonck. The Justice who
presided over the Johnson indietment was NYS Supreme Court Justice John Ark.

10. People v. Nicholson (Monroe County Court, Indictment #952, 1990)

In 1990, Nicholson was charged with murder in the second degree in connection with the
shooting death of Richard Smith. Nicholson was tried by a jury and convicted in large
part on the testimony of one eyewitness, in spite of the fact that the murder happened in
the middle of a crowd of over twenty people. He received a sentence of 25 years to life,
and the conviction was ultimately affirmed after a remand and hearing regarding a post-
conviction motion. People v. Nicholson . 222 AD2d 1 055 [4th Dept 1995]; affirmed after
remand 238 AD2d 937 [4th Dept 1 997]; leave denied 90 NY2d 908; motion for writ of
error coram nobis denied, 263 AD2d 972 [4th Dept 1 999]. The victim’s mother went on
to found a homicide survivors support organization called Families and Friends of
Murdered Children and Victims of Violence. I have worked with her on this organization
since its inception.

I served as lead and sole trial counsel.

The defendant was represented by Louis Pilato (to the best of my knowledge he is no
longer in New York State and I do not have a current address or phone number for him)

Monroe County Court Judge Charles Maloy, now retired, was the judge.

1 8. Legal Activities : Describe the most significant legal activities you have pursued,

including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organization(s) for whom you performed lobbying activities and describe
the lobbying activities you performed on behalf of such client(s) or organizations(s).
(Note: As to any facts requested in this question, please omit any information protected
by the attorney-client privilege.)

New York State Commission on Sentencing Reform

From 2007 to 2009, 1 served on the New York State Commission on Sentencing Reform.
The commission met for almost two years and in the course of this time I reviewed and
researched New York’s current and historical sentencing structure, listened to testimony
from a wide variety of individuals, reviewed data, visited correctional institutions and
debated changes to the sentencing structure with Commission Chair Denise O’Donnell
and the other members of the Commission. I was the only prosecutor of the 1 1
commission members, and as such tried to represent not only my concerns and views, but

87

993

also to the extent possible, those of New York prosecutors. The Commission issued a
preliminary report (A Preliminary Proposal for Reform, October 15, 2007) and a final
report (The Future of Sentencing in New York State: Recommendations for Reform,
January 30, 2009), which were supplied above in response to question 12(b).

New York State Task Force on Transforming Juvenil e Ju stice

In September of 2008, 1 was appointed to the newly created New York State Task Force
on Transforming Juvenile Justice by Governor David Paterson. The Task Force reviewed
data, conducted interviews with stakeholders, and consulted national and local juvenile
justice experts. The group also visited programs and facilities across New York and in
other states. The process resulted in the Task Force issuing 1 9 recommendations that
provided a framework for an effective juvenile justice system grounded in the best
available research and literature. These recommendation are contained in our final report
(Charting a New Course, A Blueprint for Transforming Juvenile Justice in New York
State, December 2009), which were supplied above in response to question 12(b).

I have never served as a lobbyist.

19. Teaching : What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.

Rochester Institute of Technology - Fall Quarters, 2008, 2009, 2010.

Major Issues in Criminal Prosecution. Syllabi attached.

20. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest.

Pension from the New York State Retirement System for service with the Monroe
County District Attorney’s Office.

21. Outside Commitments During Court Service : Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.

I have no such plans, commitments or agreements.

22. Sources of Income : List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items

88

994

exceeding $500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1978, may be substituted here).

See attached Financial Disclosure Report.

23. Statement of Net Worth : Please complete the attached financial net worth statement in
detail (add schedules as called for).

See attached Net Worth Statement.

24. Potential Conflicts of Interest :

a. Identify the family members or other persons, parties, categories of litigation, and
financial arrangements that are likely to present potential conflicts-of-interest
when you first assume the position to which you have been nominated. Explain
how you would address any such conflict if it were to arise.

On occasion my office begins the prosecution of cases that are then adopted for
federal prosecution by the United States Attorney’s Office or my office’s
prosecutions occur simultaneously in federal court. If I am confirmed, there may
be cases pending in federal court that are based on state charges being prosecuted
by my office while 1 was District Attorney. To address potential conflicts of
interest in these cases or any others where issues arise, I would follow the Code of
Conduct for United States Judges and all other applicable statutes, rules, policies,
procedures and case authority.

b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.

If confirmed as a United States District Judge, I would resolve all issues relating
to potential conflicts of interest by referring to and following the Code of Conduct
for United States Judges and all other applicable statutes, rules, policies,
procedures and case authority on this topic.

25. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar
Association’s Code of Professional Responsibility calls for “every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving the disadvantaged.” Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.

Most recently, I have served the disadvantaged through my work with the Boys and Girls
Club of Rochester. My connection to the club started in 2004 when I joined with the
Club to found Project Step Up. Step Up is a recreational and educational program for at-
risk teens, run at night during the summer months and funded with federal drug forfeiture
money from my office. Project Step Up has run every year since 2004, and I have been
personally involved in administering and monitoring the program and helping mentor

89

995

participants. I have attended numerous sessions of the program every year, spent time
mentoring individual participants at the dub and outside the club, and have attended
graduations and other functions celebrating the success of our members. I am now a
member of the Board of Directors of the Club and spend approximately 1 0 hours per
month working on Club related issues in that capacity. On average I would estimate that
I visit Club sites or attend club functions between 25 and 50 times per year.

Prior to my work with the Boys and Girls Club, I spent many years as a tutor at School 29
in Rochester through the Lawyers for Learning program. School 29 is in one of the most
challenged areas of the City. I tutored first through fourth graders once a week for one
hour during the school year.

26. Selection Process :

a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
the interviews in which you participated). Is there a selection commission in your
jurisdiction to recommend candidates for nomination to the federal courts? If so,
please include that process in your description, as well as whether the commission
recommended your nomination. Lisl the dates of all interviews or
communications you had with the White House staff or the Justice Department
regarding this nomination. Do not include any contacts with Federal Bureau of
Investigation personnel concerning your nomination.

In January 2009, 1 contacted Senator Charles E. Schumer’s Rochester office to
express my interest in the vacancy and to inquire about the process for
consideration. I was advised to contact Mark O’Donoghue, Esq., who I was told
was the head of Senator Schumer’s screening committee for judicial positions. I
sent Mr. O’Donoghue an e-mail with a resume attached, expressing my interest
and requesting information on the process. I received a response from his
assistant with an attached questionnaire to complete. On February 1 8, 2009, 1
submitted a confidential questionnaire to the screening committee for Senator
Schumer. On May 14, 2009, 1 interviewed with the screening committee at the
offices of Mr. O’Donoghue’s law firm in New York City. I was not informed of
the results of this process. On May 10, 2010, 1 met with Senator Schumer in
Rochester where he interviewed me regarding my application. On July 13, 2010,
Senator Schumer called to inform me that he was forwarding my name to the
White House for the vacancy in the Western District of New York.

Since July 27, 20 1 0, 1 have been in contact with pre-nomination officials at the
U.S. Department of Justice. 1 interviewed with attorneys from the White House
Counsel’s Office and the Department of Justice in Washington, D.C., on
November 30, 2010. On January 26, 201 1, the President submitted my
nomination to the Senate.

90

996

b. Has anyone involved in the process of selecting you as a judicial nominee

discussed with you any currently pending or specific case, legal issue or question
in a manner that could reasonably be interpreted as seeking any express or
implied assurances concerning your position on such case, issue, ot question? If
so, explain fully.

No.

91

997

FINANCIAL DISCLOSURE REPORT
NOMINATION FILING

Report Required by the Ethics
in Government Art of 1978

(s u.s.c. npp. s$ iot-nt )

I, Person Repotting (bit name, first, middle initio l>

2. Court or Organization
U.S.Districi Coun. NY-W

j ii. Title (Article 111 judges irulieaic active or senior stal
| mayisiratt judges tmliralc full- or piti-sinw)

j 7. Chambers or Office Address

| 47 South Fitzhugh Sired
I Rochester. New S'ori 14614

5a. Report Typs(eb«W appropriate type) 6. K«|

|~y| NomiBStiDO, D«c Dl/36/201 1

( | Initial | | Annual j^j Final

5 b. Amended Report

9. Oh the boil i ef Die information contaUed In this Report and any
modifications pertain fng thereto. It Is. In my oplatnfl. In compliance
nllli applicable laws and regulations.

/ M POR TANT NO TES: The instructions accompanying this form mint be followed. Complete all parts,
checking the iVQA’E box for each part where you have no reportable information. Sign on lost page.

I. POSITIONS. (Reporting ioJMJnal oiify; see pp. 9-13 Of filing tns/ruc/hmj
[ | NONE (No reportable positions.)

Days and Girts Club of Rochester

Notional Center for Missing and Exploited Children - NY Branch

American Cancer Society * NY Finger Lakes Region

Hulher Doyle Memorial Institute (Chemical Dependency Treatment)

District Attorneys Association of the State of New Yoik

II. AGREEMENTS. (Reporting iiuJhhlual only; we pp- N-16 of filing Inurtictlom f
f [ NONE (No report able agreements.)

1. 1 937-20 il

New York Stale Pension Fund - Pension upon reaching retirement age

998

FINANCIAL DISCLOSURE REPORT

Name of PsrioR Reporting

Mate of Report 1

Page 2 of?

Green, Mtchtici C.

01/26/20H

III, NON-INVESTMENT INCOME . Ottponhig fnifirMnii and spotlit; xeejtfl. tf-3-t vfJttblX limrnti!tws.)

A. Flier's Non-Investment Income

\ ~1 NONE (No reportable non-investment income.)

2009 Monroe County - District Attorney salary

INCOME

(yours, not spouse's?
Si35,?56,?2

2,2010

Monroe County * District Attorney salary

S 136,699.94

3. 2009

Rochester Institute of Technology - teaching

S2, 820.00

4. 2010

Rochester Institute of Technology * leaching

S2.90S.00

D. Spouse's Non-Investment Income - t/yult u'tre n/asiM liuthip rmyponhin nf the wporllngyear, eovipltfe this section

fbofktriUixHintnolmjU irej except Jor Awwoiji nu)

j j NONE (No reportable non-investment income.)

PATE

l. 2009 Town ofPiltsfonl -Town Doarti salary

2.2009

Tliomson Reuters - Hilary

3. 2010

Town of Rittsfonl * Town Board salary

4.3010

Thomson Ratters • salary

IV. REIMBURSEMENTS — irauipitrla/loH, totiatrrg.fooit, ettitriabiroettK

Om tuiMi to tpcun.- triul tiept'iikote/iiMfi: sccpp. 3S-J? bifintiioiaj

f j NONE (No reportable reimbursements.)

SPURGE PAXES LOC A TION.

I. Exempt

PURPOSE

999

FINANCIAL DISCLOSURE REPORT

1 Name of Tenon Reporting

Date of ftrper:

Page 3 of 7

j Green, M.'chnel C,

01/26/201 I

V, GIFTS. (Iticim/ei fftiur In spoiar arnf dependent children; sc

1 1 NONE (No reportable gifts.)

e pp. 38-31 of {Ulus tnsltucilons. J

SOURCE

DESCRIPTION

VALUE

1. Exempt

2 .

3 ,

VI. LIABILITIES. (IiKlutlel rhait <>f spouse am) dependent eblhfreH; fee pp Jl-iJ o/ftHuff tiurtneilnAr.)
[/] NONE (No reportable liabilities.)

1000

FINANCIAL DISCLOSURE REPORT

Name of Person Rtparrlnc j

j Owe of Report

Page 4 of 7

Green, Mfeiioc! C.

01/26/3011

VII. INVESTMENTS and TRUSTS - Income, ratac, icausacitBHJ (tnclmUsJheit ej spouse oiti dependent children! see pp. JJ-60 of filing liulrutfotn.)
| ] NONE (No reportable income, assets, or transactions.)

Description of Aiscrt

b.

Income during
reporting period

c

Grots value #1 end
of repodins period ,

D.

Transaction* doting rcponbjj period

(inclndmg inisi atsew) |

PlKC "<xr oAcr cadi ostet
exempt from prior disdosuie

j <»
Amount
Code 1

(A-H>

(2)

Type (tg.,
dK'., ism.

(»)

Value

Code 2
(M*>

i (2) |

| Value
, Method !
. Crate > |

| (Q-W) j

O)

Type (c.g„
buy. sell,
rvikmptkn)

(2) j P) J (4) 1

Date j Vatne i Gain

imti/dd/yy j Code 2 i Code 1

j (J-P) ' (A-H) .

! ! :

(Ji

ldeuttlyof
buycr/«lkf
(if private
mmaclion)

1 . American Funds Tax Exempt Bond Fund of

America - A

B

Dividend

V

T

Exempt

2. American Funds Growth Fund of America -
A (IRA)

A

Dividend

J

T

J. American Funds Fundamental Investors - A
(IRA)

B

H

T

4. Trust VI - American Funds AMCAP Fund
Class A

A

Dividend

.. .

J

T

S. Trust H2 - American Funds Growth Fund of
America - A

B

T

6. American Funds New Perspective fund - A
(IRA)

A

Dividend

J

T

7. Thomson Reuters Corp Stock

A

Dividend

■

T

8. Fidelity Investments - Core Account (cash)

B

i

T

0. LifcPalh 2020 Fund T (Thomson Reuters

40 IK Plan)

None

M

T

■

10. Vanguard Growth Index Fund lm> -
Education Savings Account

A

_

Dividend

J

T

■

1 1 , Vanguard Growth Index Fund Jnv -
Education Savings Account

A

Dividend

J

T

| |

■

1 2. Nonbwesiem Mutual Whole Life 1 nsurancc

A

Dividend

■

■a

B

S3. Northwestern Mutual Whole Life Insurance

A

Dividend

H

■

B

14. Northwestern Muionl Whole Life Insurance

A

Dividend

J

T

1 5. Non h western Mtitunl Whole Life Insurance

B

i

T

16. Pilisford Fedeml Credit Union - Bank
Accounts

A

Iniercst

K

T

17.

1. Income Cms CoJa:

(See CuluinncBt and B4>

2. Value Codes

(See Column* Cl and DJ)

J, Value Method Code*

(S« Column C2)

A-JI.D00 wlen
F -150.001 • SIOO.OOO
J-5I5.DOO of I ur
N-S2WJMI .5500.000
M -JU.WM.0O1 . S50.000.0M
<J -Apprairal

U-U«k Value

a -51.001 -SJJoa
G “SI oo.mi .$1,000,000
K-51JJOI.S5O.0M
O -5500,001 . S!.w».»»

a -Coal (Rol Si wc Only)
V -Oilier

C-S2.101-S5.000
II) -S1.000.M1 - 55.000000
I. -550,001 -5 100
Pi -J1.000.00! -S5JMJOO
N —Mow Am S50.WO.0®

S -AtteiimciB
W-t«lm»led

0-55J01 -SISJ0O
112 -More than Si.000.003
M-StOfi.O0I-S25CI.O0O
tt «$J JOO.OUl - S25.0CO.00O

T -Cruh Mut'd

1001

FINANCIAL DISCLOSURE REPORT

Naths of SVflon Ifcpsrtlng

Date of Rrpurt

Page 5 of 7

Green. Michael C.

0i/2fi/201! ]

VII. INVESTMENTS and TRUSTS - income, i-alitv, tmnecUom (hicloin ihoce of speutc *W dependent cintdretu set )tp. JJ-6B ufjllfag Invructioia
f~~~) NONE (No reportable income, assets, or transactions.)

A.

Ocseripitcn of Am
(including misi Midi)

8.

Income during
reporting period

C.

Gtotj vshie M end
of jtpwting period

D. j

Tranweirwis during reporting period

Msec "(X)“ slier each a$$et
exempt from prior tfijctwure

{« j
Amcttid :
Code 1
fA-H) |

(3>

Typ c ('-.g.,
Av., icni.

orim.)

to 1

Value
CodtJ ;
(IP) j

[ m !

Volos

Method ■
C«it> j

<q-wi j

<»>

Type (e*,
buy, scB,
redemption)

(2) ]
Dale

mm/tld'Vy j

i

| (3) ;

I Value :
i Code! :

«/n j

...J

{■»>

Gain .
Codct j
fA-Hj j
i

J

{5) >

! Identity of j

1 biryer/xller 1

[ (if private ;

l iranBciieft)

18 .

20.

Mneontc Grin Cede*;

IS« CohmtM Ui irtJIM)
3, Vitae Cfdu
jSw Cohnnftj Ct and U3|

J. Valor Method C«J«

(See Ctthwwi C3>

A -51,000 «r ttj»

E- 5 Jao 01 • S 5 C 03 B 0
J’-JlJ.OUSwfcil
N -UJODDi . JJOOdMO
PI "J >1,000,001 -JJB.OOOIMO
9 -Apptaiiat
U “Mooli Value

H -Jl.tUI - SJJOO
0 -5100.001 -51.000,000
K -515,001 - *10.000
O-SHB.M! .Si.OOOvMO

R -Coil (Hs»l lrivn« Only)
V -Other

C-IlrKM .55,000

111 -SIDOC.OOl . Si.KKWXtt

L-J5OJJ0I -5100000

pi -ti.oooniii - w.caoioo

N -Mure ilun 550000,0®

5 •'Aueuntmi
«* -Eiiinui td

D *55,001 -SIJDOO
Hi «t> lore thin 5J.Mtt,0W>

M -JlDOdOt - SJHEOC*

Pi -SJ.000.OOI - 515,000.000

7 -Caik Market

K-S*5i»l-S50«lt>

1002

FINANCIAL DISCLOSURE REPORT

Nome of Penan Reporting

Date of Report j

Page 6 of 7

Green, Michael C.

0 1/26/20 11

VIII. ADDITIONAL INFORMATION OR EXPLANATIONS . (Indicate part of Report)

FINANCIAL DISCLOSURE REPORT

Name of Penan Reporting

Doieaf Report

Page 7 of 7

Green, Michael C.

01/26/2011

IX. CERTIFICATION.

i certify’ that all tuformaflon given above (Including Information pertaining to my spouse ond miner or dependent children, If ony) Is
accurate, true, and complete to the best of my knowledge nnd belier, and thnt any Jnformntlon not reported was withheld because » met applicable statutory
provisions permuting non-disclosure.

I further certify that earned Income from outside employment and bonorarln and the acceptance of gifts which have been reported arc In
compliance with the provisions of 5 U.S.C. tpp. § 591 el. serj., 5 U.S.C. § 7353, nnd Judicial Conference regulations.

Signature^

NOTE: ANV INDIVIDUAL W1IO KNOWINGLY AND WILFULLY FA1.SIF1ES OR FAILS TO FILE THIS REPORT MAY BF. SUBJECT TO CIVIL
AND CRIMINAL SANCTIONS (5 ILS.C. app. § lOJ)

FILING INSTRUCTIONS

Mail signed original and 3 additional copies to:

Committee on Financial Disclosure
Administrative Office of the United Stoles Courts
Suite 2-301

One Columbus Circle, N.E.

Washington, D.C. 20544

1003

FINANCIAL STATEMENT
NET WORTH

Provide a complete, current financial net worth statement which itemizes in detail alj assets (including bank
accounts, real estate, securities, trusts, investments, and other Financial holdings) all liabilities (including debts,
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate members of your
household.

J Cash on hand and in banks

I U.S. Government securities

Listed securities - see schedule

Accounts and notes receivable:
Due from relatives and friends

| Rea] estate owned — personal residence

Rea) estate mortgages receivable

LIABILITIES

j Notes payable to banks-securcd

Notes payable to banks-unsecured

320 245 Notes payable to relative;

Notes payable to others

| Accounts and bills due

Unpaid income tax

Other unpaid income and interest

Real estate mortgages payable - personal

residence

214 j 000 j Chattel mortgages and other liens payable

Other debts-itemize:

1004

FINANCIAL STATEMENT
NET WORTH SCHEDULES

Listed Securities

Thomson Reuters Corp. $24,045

American Funds - AMCAP 1 0,540

American Funds - Fundamental Investors 9,107

American Funds - Growth Fund 27,797

American Funds - New Perspective 8,082

American Funds - Tax Exempt Bond Fund 54,507

LifePath 2020 Fund T 1 59,73 1

Putnam Stable Value Fund 7

Vanguard Growth Index Fund 17,403

Janus Global Select Fund D 9,026

Total Listed Securities $320,245

$54,891

13,000

$67,891

Persona! residence - Primary Mortgage
Personal residence - Home equity line of credit
Total Real Estate Mortgages Payable

1005

AFFIDAVIT

Michael C. Green, do swear that the information provided in
is statement is, to the best of my knowledge, true and
curate .

Jill A. Graby

Notary Public, SWe at Nm YwK

QuaMadln Gwirt* ofUwm* I 't!

1006

STATEMENT OF WILMA ANTIONETTE LEWIS, NOMINEE TO BE
JUDGE FOR THE DISTRICT COURT OF THE VIRGIN ISLANDS

Ms. Lewis. Yes, indeed I did. And I would like to thank Con-
gresswoman Christensen for that wonderful introduction.

First, though, I will start by thanking President Obama for the
honor of this nomination. If I’m confirmed by the Senate, it would
be a great privilege for me to have the opportunity to serve in the
Virgin Islands, the place that I am always proud to call home. I
would also like to thank this Committee for conducting the hearing
and for considering my nomination, thank you; Madam Chair, for
presiding today; and Senator Grassley, for your presence here as
well.

I also would like to thank my current boss, Ken Salazar, for his
support throughout the process. He’s been a great leader, a won-
derful boss, and he has given me his complete support during the
course of this process and I would like to thank him for that.

I do have some family members and friends here whom I’d like
to introduce. I will start with my immediate family, and first
among those is my mother, Juta Lewis, who’s sitting behind me,
as Congresswoman Christensen mentioned, a former Customs Offi-
cial, the Assistant District Director of Customs to the Virgin Is-
lands, retiring after 30 years of service.

I would like to acknowledge as well and recognize my late father
who’s not here with us physically, but I know is here with us in
spirit and I’m sure is smiling and is very proud today. It is my
mom and my dad to whom I will be eternally grateful for the per-
son whom I have become, because it is their example, it is their
love, their support that has made me the person who I am today
and I’m very pleased that my mother is here in person and my dad
is here in spirit.

I will continue with my brother, Warren Lewis, who is also a
public servant with some 37 years under his belt. He’s currently
the executive officer at Interpol, and previously served with the
former Immigration and Naturalization Service in a number of ca-
pacities, including as Assistant Regional Commissioner and as Dis-
trict Director of two different jurisdictions.

He’s here as well with his wife and my sister-in-law, Jean Lewis,
recently retired from the Internal Revenue Service after some 34
years of government service, and my nephew, Aaron Lewis, who
will be a senior this year at St. Mary’s College of Maryland. He’s
a scholar/athlete, I’m proud to say, on the honor roll, on the dean’s
list there, and also quite the soccer player, having returned last
night from Puerto Rico after helping the U.S. Virgin Islands Na-
tional Soccer team secure a victory in Puerto Rico. So I’m pleased
that he is back today.

We have some close friends of the family: Leslie Turner, who is
the chief legal officer at Coca-Cola, a former colleague and personal
friend; Reed Raymond, who is the vice president and administra-
tive officer for the Federal Reserve Bank of Philadelphia. Reed
Raymond, another close personal family friend. And also Hon.
Thomas Motley, a former colleague of mine and current Superior
Court judge here in the District of Columbia.

There are a number of other people in the audience who are sup-
porters. I would like to thank some members of my church who are

1007

here today, Faith Moravian Church of the Nation’s Capital, who al-
ways surround me with a blanket of love and support, and they
continue to do so today by their presence here, as well as on the
webcast where I know some are watching.

I have some other personal friends here as well, and also some
colleagues from the Department of Interior, in particular the cor-
ridor, the Assistant Secretary’s corridor. They are here as well.
They are tremendous colleagues, hardworking public servants, and
I thank them for their support. Thank you very much.

Senator Klobuchar. Very good. Thank you.

And then, General Quagliotti.

[The biographical information follows.]

1008

UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY

QUESTIONNAIRE FOR JUDICIAL NOMINEES

PUBLIC

1. Name : State full name (include any former names used).

Wilma Antoinette Lewis

2. Position : State the position for which you have been nominated.

Judge for the District Court of the Virgin Islands

3 . Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.

United States Department of the Interior
1849 C Street, NW
Washington, DC 20240

4. Birthplace : State year and place of birth.

1956; Santurce, Puerto Rico

5. fj^-cation: List in reverse chronological order each '’••liege, law or any other

institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.

1978 - 1981; Harvard Law School; J.D., 1 981

1974 - 1978; Swarthmore College; B.A. with distinction , 1978

6- Employment Record : List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation
from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.

2009 — Present

United States Department of the Interior
1 849 C Street, NW
Washington, DC 20240

Assistant Secretary, Land and Minerals Management (2009 - Present)

Senior Advisor to the Secretary (2009)

1009

2007 - 2008

Federal Home Loan Mortgage Corporation (“Freddie Mac”)

8200 Jones Branch Drive
McLean, Virginia 22102

Managing Associate General Counsel (Litigation)

2001-2007

Crowell & Moring LLP

1001 Pennsylvania Avenue, NW

Washington, DC 20004

Partner

Fall semesters 1993 - 2006

The George Washington University Law School

2000 H Street, NW

Washington, DC 20052

Adjunct Faculty Member - Professorial Lecturer in Law (Trial Advocacy)
(Served without compensation from 1993 to 2000)

1998-2001

Office of the United States Attorney for the District of Columbia

Judiciary Center Building

555 Fourth Street, NW

Washington, DC 20001

United States Attorney

1995-1998

United States Department of the Interior
1 849 C Street, NW
Washington, DC 20240
Inspector General

1993-1995

United States Department of the Interior
1 849 C Street, NW
Washington, DC 20240
Associate Solicitor, Division of General Law

1986-1993

Office of the United States Attorney for the District of Columbia
Judiciary Center Building
555 Fourth Street, NW
Washington, DC 20001

Assistant United States Attorney (1 98S - 1993)

Deputy Chief, Civil Division (1993)

Assistant Chief, Civil Division (1989 - 1993)

2

1010

1981 -1986

Steptoe & Johnson LLP

1330 Connecticut Avenue, NW

Washington, DC 20036

Associate

Summer 1980
Steptoe & Johnson LLP
1330 Connecticut Avenue, NW
Washington, DC 20036
Summer Associate

Summers 1978 and 1979

Virgin Islands Department of Law (now Virgin Islands Department of Justice)

34-38 Kronprindsens Gade
GERS Building, 2 nd Floor
St. Thomas, Virgin Islands 00802
Law Clerk (Summer 1 979)

Legal Assistant (Summer 1978)

Other Affiliat ion s funcomnen s ated):

1991 - 1995; 1997 - 2001 ; 2006 - Present
Faith Moravian Church of the Nation’s Capital
405 Riggs Road, NE
Washington, DC 20011

Member, Board of Trustees/Joint Board (1991 - 1995; 1997 - 2001; 2006 - Present)
Advisor (2009 - Present)

PresidentyChairman (1993 - 1995; 2000 - 2001; 2006 - 2009)

Secretary (1991 - 1993)

2005 - Present

Moravian Theological Seminary
1 200 Main Street
Bethlehem, Pennsylvania 18018
Member, Board of Trustees (2005 - Present)

Advisor (2009 - Present)

Chairman (2007 - 2009)

2007-2009

American Arbitration Association
1633 Broadway, 1 1 ) lh floor
New York, New York 10019
Member, Board of Directors

3

1011

2005-2009
The High Tea Society
609 Girard Street, NE
Washington, DC 20017
Member, Board of Directors

2002-2009

Washington Lawyers' Committee for Civil Rights and Urban Affairs
1 1 Dupont Circle, NW, Suite 400
Washington, DC 20036
Member, Board of Directors

1992 -1995; 2001 -2009
Swarthmore College
500 College Avenue
Swarthmore, Pennsylvania 19081
Member, Board of Managers

2004-2007

District of Columbia Board of Elections & Ethics
44 1 Fourth Street NW, Suite 250
Washington, DC 20001
Chairman

2002 - 2007

District of Columbia Judicial Nomination Commission
555 Fifth Street, NW, Suite 235
Washington, DC 20001
Commission Member

2001 -2006

National Institute for Law and Equity, Inc.

2670 Union Avenue Extended, Suite 903
Memphis, Tennessee 381 12
Member, Board of Directors

1996-1998

Public Administration Forum (no longer in existence)

Member, Board of Directors

1984-1986

Washington Area Tennis Patrons Foundation, Inc, (now Washington Tennis and
Education Foundation)

1 6 th & Kennedy Streets, NW
Washington, DC 20011
Member, Board of Directors

4

1012

7. Military Service and Draft Status : Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.

t have not served in the military. 1 have not registered for selective service.

ft. Honors and Awards : List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.

Professional Honors and Awards

2003 Featured in the Summer 2003 Harvard Law Bulletin among 50 female graduates
of Harvard Law School who have used their legal education “to take them to
extraordinary places.”

2002 Recognition of Service Resolution from the Twenty-Fourth Legislature of the
United States Virgin Islands

2001 Janet Reno Torchbearer Award for achievement as the first African-American
woman to hold the position of United States Attorney for the District of
Columbia, commitment to community outreach, and providing opportunities for
the advancement of women and minorities, from the Women’s Bar Association of
the District of Columbia

Charlotte E. Ray Award for demonstrated excellence as a lawyer, significant
contributions to the legal community, and trailblazer for African American
women in the legal profession, from the Greater Washington Area Chapter,
Women Lawyers Division of the National Bar Association and GW AC
Foundation, Inc.

Citation for dedication and commitment to service, honoring Charlotte E. Ray
Award recipient, from Mayor Anthony Williams, District of Columbia

Dr. Martin Luther King, Jr., Dream Keepers Award for service to humanity and
country, from the Martin Luther King, Jr., Celebration Day Committee, Inc.,
Washington, DC

Bethune-Dubois Institute Award for superb accomplishments as the first
presidentially appointed woman and second African-American to serve as United
States Attorney for the District of Columbia

Excellence in Leadership Award from the Drug Education for Youth Program,
Office of the United States Attorney for the District of Columbia

5

1013

“Diakonia” Award for service to society, from the Cathedral Church of All Saints,
St. Thomas, Virgin Islands

Star of the Bar Ilonoree, Women’s Bar Association of the District of Columbia

Numerous plaques from various law enforcement agencies upon completion of
service as United States Attorney for the District of Columbia

2000 Inclusion in Exhibit - “Africana Women at the Dawn of the New Millennium,”
sponsored by The George Washington University’s Gelman Library and the
African Women’s Nexxus Institute (Alexandria, Virginia), together with the
Award for Achievement (Nexxus Institute) and Legal Affairs Achievement
Award (Gelman Library)

Outstanding Citizen Award for career achievements and contributions to society,
front the Maryland Virgin Islands Association

Certificate of Special Congressional Recognition for outstanding and invaluable
service to the community, from The Honorable Donna M. Christensen, Member
of Congress from the Virgin Islands

Governor’s Citation for service to the Caribbean and American communities,
from Governor Parris Glendening of Maryland

Award for outstanding contributions to the development of the United States,
from the Caribbean American Intercultural Organization, Inc., Washington, DC

1999 Founders’ Award for outstanding achievement in service to the legal profession,
from the National Black Prosecutors Association

Excellence in Public Service Award from the Institute of Caribbean Studies,
Washington, DC

1998 Women’s History' Month Honoree, National Political Congress of Black Women,
Washington, DC Chapter

1996 Roiex Achievement Award presented to a past participant in varsity collegiate
tennis in recognition for outstanding career achievements and contributions to
society, from Roiex Watch USA and the Intercollegiate Tennis Association

1988 and 1989 Department of Justice Special Achievement Awards for sustained
superior performance as an Assistant United States Attorney

1986 to 1993 (Unsolicited) Letters of commendation from officials in various Federal
agencies for work performed as an Assistant United States Attorney at the
trial and appellate levels

6

1014

1982 Outstanding Young Women of America

Collegiate Honors and Awards fSwarthmore College — Swaith ro ore. Pennsylvania*!

1978 Bachelor of Arts degree with distinction
Phi Beta Kappa
Joshua Lippincott Fellowship

All Tournament Team, MIT Invitational Basketball Tournament

1977 All Tournament Team, Brown University Invitational Basketball Tournament
Women’s Athletic Association Blazer Award

1976 Two-year Varsity Award in tennis and basketball

9. Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.

Advisory Committee on Local Rules, U.S. District Court for the District of Columbia
American Bar Association
American Bar Foundation, Fellow

Attorney General’s (Janet Reno) Advisory Committee (ex officio member)

Criminal Justice Coordinating Council for the District of Columbia (formerly known as
Memorandum of Understanding Partners)

District of Columbia Bar

Member, District of Columbia Bar Nominations Committee (2008 - 2009)

District of Columbia Judicial Nomination Commission
District of Columbia Women’s Bar Association

The Mayor’s (Anthony Williams) National Blue Ribbon Commission on Juvenile Justice
Reform in the District of Columbia
Minority Corporate Counsel Association
Faculty Advisory Board

Retrospective Advisory Committee to the Standing Committee on Fairness and Access of
the District of Columbia Courts

U.S. District Court for the District of Columbia Civil Justice Reform Aet Advisory Group

1 0. Bar and Court Admission :

a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.

District of Columbia, 1 98 1

Virginia, 2008 (Corporate Counsel, for purposes of employment at Freddie Mac)

7

1015

There has been no lapse in my District of Columbia bar membership. My
Virginia Bar membership expired of its own terms at the end of my tenure with
Freddie Mac in 2008.

b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
in membership. Give the same information for administrative bodies that require
special admission to practice.

Supreme Court of the United States (2000)

United States Court of Appeals for the District of Columbia Circuit (1988)

United States Court of Appeals for the Fourth Circuit (2004)

United States Court of Appeals for the Federal Circuit (200b)

United States District Court for the District of Columbia (1982)

District of Columbia Court of Appeals (1981)

11. Memberships :

a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 10 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership or participation, and indicate any office youheid.
Include clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.

American Arbitration Association

Member, Board of Directors (2007 - 2009)

American Bar Foundation

Fellow (2000 - Present)

American Inns of Court

The William B. Bryant Inn (1 993)

Faith Moravian Church of the Nation’s Capital (1989 - Present)

Member, Board of Trustees/Joint Board (1991 - 1995; 1997 - 2001; 2006
- Present)

Advisor (2009 - Present)

President/Chairman (1993 - 1995; 2000 - 2001; 2006 - 2009)

Secretary (1991 - 1993)

Friends of Swarthmore Athletics

Member, Advisory Board (1984 - 1986)

Handbell Choirs, Faith Moravian Church of the Nation’s Capital
Founder and Director (2005 - Present)

The High Tea Society

Member, Board of Directors (2005 - 2009)

Howard University School of Law

Member, Board of Visitors (2000 - 2002; 2004 - 2009)

8

1016

Moravian Theological Seminary

Member, Board of Trustees (2005 - Present)

Advisor (2009 - Present)

Chairman (2007 - 2009)

Chairman, Student Life and Enrollment Committee (2006 - 2007)
National African-American Drug Policy Coalition

Member, Blue Ribbon Drug Policy Commission (2005 - 2006)

National Institute for Law and Equity, Inc.

Member, Board of Directors (2001 - 2006)

National Youth Leadership Forum on Law

Memhcr, Board of Advisors (2001 -2007)

Phi Beta Kappa (1978 - Present)

Public Administration Forum

Member, Board of Directors (1 996 - 1998)

Swarthmore College

Member, Board of Managers (1992 - 1995; 2001 - 2009)

Swarthmore College Alumni Gospel Choir ( 1 986 - Present)

Member Steering Committee (1991 - 1994)

Virgin Islands Association (1990 - Late 1990’s)

Washington Area Tennis Patrons Foundation, Inc. (now Washington Tennis and
Education Foundation)

Member, Board of Directors (1 984 - 1 986)

Washington Lawyers’ Committee for Civil Rights and Urban Affairs
Member, Board of Directors (2002 - 2009)

b. The American Bar Association’s Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion, or national
origin. Indicate whether any of these organizations listed in response to 1 la above
currently discriminate or formerly discriminated on the basis of race, sex, religion
or national origin either through formal membership requirements or the practical
implementation of membership policies. If so, describe any action you have taken
to change these policies and practices.

To my knowledge, none of the organizations listed in response to 1 la above
currently discriminates or formerly discriminated on the basis of race, sex,
religion, or national origin.

12. Published Writings and Public Statements :

a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Supply four (4) copies of all published
material to the Committee.

9

1017

Based on my present recollection and a thorough review of available records, 1 am
aware of the following, although it is possible that this list may not be exhaustive.
1 have made a good faith effort to be as comprehensive as possible and have
provided documents reasonably available to me.

Wilma A. Lewis and Stephen M. Byers, Corporate Internal Investigations : Some
Basic Considerations, Directors & Boards Boardroom Briefing, Summer 2005.
Copy supplied.

A Sense of Self, The Meaning of Swarthmore, ed. Roger Youman, Swarthmore
College, 2004. Copy supplied.

Community Prosecution in the Office of the United Stales Attorney for the District
of Columbia, U.S. Attorney’s Bulletin, Jan. 2001 . I do not have a copy of this
Bulletin.

b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, give the
name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.

Based on my present recollection and a thorough review of available records, I am
aware of the following reports, memoranda or policy statements, although it is
possible that this list may not be exhaustive. 1 have made a good faith effort to be
as comprehensive as passible and have provided documents reasonably available
to me.

Assistant S ecretar y for the U.S. Department of the Interior

Since assuming office in August 2009, 1 have issued 25 Public Land Orders
(PLOs), Nos. 7736 to 7760. Copies are supplied.

I also contributed to the preparation of the following reports, copies of which are
supplied:

Report to the Secretary of the Interior, Outer Continental Shelf Safety
Oversight Board, Sept. 1, 2010.

Implementation Report to the Secretary of the Interior on the Reorganization
of the Minerals Management Service, July 1 4, 20 1 0.

10

1018

Chair, District of Columbia Board of Elections & Ethics

Between 2004 and 2007, 1 contributed to opinions on the matters that came before
the Board. Decisions in which I participated are listed below and copies are
supplied:

Montes v. Mesidor, No, 07-003, Mar. 28, 2007,

In re: District of Columbia Independents for Citizen Control Party, No. 07-
002, Mar. 16, 2007.

In re: District of Columbia Independent Parly , No. 07-001, Jan. 26, 2007.
Williams v. McMahan, No. 06-005, Nov. 7, 2006.

Will Cobb, Candidate, No. 06-001, July 29, 2006.

Drake, et al. v. The Citizens Committee for the D G Video Lottery Terminal
Initiative of 2004, et al.. No. 05-002, Aug. 8, 2005.

In re: December 28, 2004 Submission of Supplemental Petition Sheets in
Support of the Video Lottery Terminal Initiative of 2004. No. 05-0 1 , Jan. 6,
2005.

In re: Advisory Neighborhood Commission, Single Member District 5B0I, No.
04-26, Dec. 21,2004.

In re: Advisory Neighborhood Commission, Single Member District IC07,

No. 04-025, Dec. 21, 2004.

In re: DC Citizens to Elect the Next Chief of Police , No. 04-24, Sept. 27
2004.

Farmer v. Artisst, No. 04-023, Aug. 19, 2004.

Farmer i>. Simmons, No. 04-022, Aug. 19, 2004.

Drake, el al. v. Citizens Committee for the D.C. Video Lottery Terminal
Initiative of 2004 , No. 04-020, Aug. 1 3, 2004.

In re: D.C. Republican Committee, No. 04-19, June 14, 2004.

In re: “GSA Bill HR 429 International Home Rule Charier Amendment #23, "
No. 04-1 8, June 14, 2004.

n

1019

In re: "Council Members Jus t Pay Their Parking Tickets Initiative of 2004 , ”
No. 04-1 7, June 14, 2004.

United States Attorney for the District of Columbia

In December 1999, while serving as U.S. Attorney, I convened and chaired the
Group Home Task Force, comprised of the U.S. Attorney’s Office and several
other federal and local law enforcement entities. The Task Force was formed in
response to reports of deaths of individuals under the care of group homes for the
mentally disabled. At the conclusion of my tenure as U.S. Attorney, the
following report on the progress to date was issued:

Group Home Task Force Interim Report, April 19, 2001 . Copy supplied.

Inspector General for the U.S. Department of the Interior

During my tenure from 1 995 to 1 998, 1 authored five Messages from the Inspector
General , which served as the introduction to the Office of Inspector General’s
semiannual reports to Congress. The five semiannual reports issued under my
name are listed below and are supplied:

April 1, 1997 - September 30, 1997
October 1 , 1 996 — March 3 1 , 1 997
April 1, 1996- September 30, 1996
October 1 , 1 995 - March 31,1 996
April 1, 1995 - September 30, 1995

Additionally, I officially submitted the semiannual reports to the Secretary of the
Interior. The first four reports listed are available on-line at:
http://www.doioig.gov/reports/semiannual-report-lo-congrcss . A copy of the fifth
report is supplied.

A complete list of internal (151) and contract (44) audit reports performed by OIG
staff during the respective periods is contained in the Appendices to the
semiannual reports. Some of these audit reports, plus a few others issued between
October 1 , 1997 and December 30, 1 997, are available on-line at
http:// ww w.doioig.gov/reports . They are as follows:

Audit Report on the Workmen's Compensation Program of the Government of
the Virgin Islands, Dec. 30, 1997.

Audit Report on the Protection and Advocacy of the Marianas, Territory of
Guam, Dec. 23, 1 997.

12

1020

Survey Report on Expenditures Claimed Against the Federal Emergency
Management Agency ’s Community Disaster Loan to the Government of the
Virgin Islands , Nov. 12, 1997.

Final Audit Report on the Student Bank at Southwestern Indian Polytechnic
Institute , Oct. 7, 1997.

Audit Report on Procurement Activities, Port Authority of Guam, Government
of Guam , Oct 7, 1997.

Audit Report on the Servicewide Media Program, National Park Service,

Sept. 30, 1997.

Audit Report on School Bus Operations, Department of Public Works,
Government of Guam, Sept. 30, 1997.

Audit Report on the Automated Law Enforcement System. US. Fish and
Wildlife Service, Sept. 30, 1997.

Survey Report on the Partners for Wildlife Habitat Restoration Program, U.S.
Fish and Wildlife Service, Sept. 29, 1997.

Audit Report on Judgment Funds Awarded to the Navajo Nation , Sept. 22,
1997.

Audit Report on Judgment Funds Awarded to the Papago Tribe of Arizona,
Sept. 15, 1997.

Audit Report on the Operation and Maintenance of Government Furnished
Quarters, Eastern Navajo and Fort Defiance Agency Offices, Bureau of
Indian Affairs, Sept. 15, 1997.

Final Audit Report on the Administration of Grants Awarded Under the North
American Wetlands Conservation Act. U.S. Fish and Wildlife Service, Aug.

29, 1997.

Audit Report on Management of Herd Levels, Wild Horse and Burro
Program, Bureau of Land Management, Fug. 12, 1997.

Audit Report on the Royalty Management Program 's Automated Information
Systems, Minerals Management Service, July 31, 1997.

Audit Report on Followup of Recommendations Concerning Personnel and
Payroll Practices, Legislative Branch, Government of Guam, July 31, 1997.

13

1021

Audi! Report on Followup of Travel by Principal Officials, U.S. Department
of the Interior , June 30, 1997.

Audit Report on the Automated Law Enforcement System, National Park
Service, June 23, 1997.

Survey Report on the Use of the Government-wide Purchase Card, National
Park Service, June 13, 1997.

Audit Report on General Controls Over Automated Information Systems,
Operations Service Center, Bureau of Indian Affairs, Apr. 10, 1997.

Audit Report on Mainframe Computer Policies and Procedures,
Administrative Service Center, Bureau of Reclamation, Mar. 31, 1997.

Audit Report on the Guam Mass Transit Authority, Government of Guam,

Mar. 31, 1997.

Audit Report on Followup of Recommendations Concerning Food Services
Operations, Department of Education, Government of Guam, Mar. 26, 1 997.

Survey Report on the Special Supplemental Food Program for Women, Infants
and Children, Department of Health, Government of the Virgin Islands , Mar.
24,1997.

Audit Report on the Direct and Guaranteed Loan Programs, Eastern Area
Office, Bureau of Indian Affairs, Mar. 10, 1997.

Audit Report on Administratively Uncontrollable Overtime, Department of the
Interior , Feb. 27, 1997.

Special Report on the Financial Management Modernization Project,
Government of Guam, Feb. 19, 1997.

Biennial Report on the Federal Royalty Management System for Fiscal Years
1994 and /903, Feb. 19, 1997.

Audit Report on Statement of Assets and Trust Fund Balances at September
30, 1995, of the Trust Funds Managed by the Office of Trust Funds
Management, Bureau of Indian Affairs, Dec. 13, 1996.

Special Report on the Cost of Construction of Employee Housing at Grand
Canyon and Yosemite National Parks, National Park Service, Dec. 6, 1 996.

14

1022

A udit Report on Office of Surface Mining Reclamation and Enforcement
Financial Controls Over the Technical Assistance Agreement With the
Republic of Indonesia, Dec. 3, 1996.

Survey Report on Judgment Funds Awarded to the Seminole Nation of
Oklahoma , Nov. 7, 1996.

Audit Report on the General Control Environment of the Federal Financial
System at the Reston General Purpose Computer Center, U.S. Geological
Survey , Oct. 31, 1996.

Survey Report on State Reclamation and Regulatory Grant Programs, Office
of Surface Mining Reclamation and Enforcement , Oct. 29, 1996.

Audit Report on the Division of Agriculture, Department of Economic
Development and Agriculture. Government of the Virgin Islands, Oct. 21,
1996.

Audit Report on Inventory Management and Valuation, National Mapping
Division. U.S. Geological Survey, Sept. 30, 1996.

A udit Report on Occupancy Trespass Resolution, Bureau of Land
Management , Sept. 30, 1 996.

Audit Report on the Inspection and Enforcement Program and Selected
Related Activities, Bureau of Land Management, Sept. 30, 1996.

Audit Report on Withdrawn Lands. Department of the Interior, Sept. 30, 1996.

Audit Report on the Administration of Delinquent Loans by the Phoenix Area
Office, Bureau of Indian Affairs , Sept. 30. 1996.

Final Audit Report on Selected Activities of the Royalty Management System,
Minerals Management Service, Sept. 30, 1 996.

Final A udit Report on Followup of Recommendations Concerning Bureau of
Indian Affairs Accountability and Control Over Artwork and Artifacts Located
in the Main and South Interior Buildings , Sept. 30, 1 996.

Audit Report on Negotiated Royalty Settlements, Minerals Management
Service, Sept. 30, 1996.

Audit Report on Extended Travel by Construction Supervisors of the Denver
Service Center, National Park Service, Sept. 26, 1996.

15

1023

Final Survey Report on the Utah Reclamation Mitigation and Conservation
Commission, Aug. 27, 1996.

Final Inspection Report on Selected Administrative Activities at the Denver
Service Center and the Administrative Program Center. National Park
Service, Aug. 9, 1996.

Final Survey Report on Fire Fighter Payroll, Albuquerque Area Office,
Bureau of Indian Affairs , Aug. 7, 1 996.

Final Audit Report on the Lower Colorado River Basin Development Fund,
Bureau of Reclamation , July 30, 1 996.

Final Audit Report on Followup of Recommendations Concerning the
Valuation of Project Facilities Proposed for Sale, Bureau of Reclamation ,

July 29, 1996.

Final Special Report on Case Work Load Management at the Hearings
Division, Office of Hearings and Appeals, Department of the Interior, July 24,
1996.

Final Audit Report on Nevada Land Exchange Activities. Bureau of Land
Management, July 15, 1996.

Final Special Report on Selected Aspects of the Circle of Nations Wahpelon
Indian School, June 25, 1996.

Final Audit Report on the Road Construction Program, Bureau of Indian
Affairs, June 17, 1996.

Special Report on Contracting With the Environmental Chemical Corporation
for a Focused Feasibility Study for Water Treatment and for Water Treatment
Services Under Bureau of Reclamation Contract No. 1425-2-CC-40-12260,
June 17, 1996.

Final Audit Report on the Office of Management and Budget Circular A-76
Study of Aircraft Services for the Pacific Northwest Region, Bureau of
Reclamation, June 10, 1996.

Final Survey Report on Emergency Medical and Search and Rescue Services,
National Park Service, June 10, 1996.

Final Special Report on the Royalty Gas Marketing Pilot, Minerals
Management Service, May 20, 1996.

16

1024

Final Audit Report on Grants for the Construction of Health Care Facilities,
Government of the Virgin Islands, May 3, 1996.

Final Audit Report on Indian Irrigation Projects, Bureau of Indian Affairs,
Mar. 29, 1996.

Final Audit Report on Selected Aspects of the Emergency Reclamation
Program, Eastern Support Center, Office of Surface Mining Reclamation and
Enforcement, Mar. 29, 1996.

Final Audit Report on the Working Capital Fund, Bureau of Reclamation,
Mar. 29, 1996.

Final Audit Report on Property Management, U.S. Geological Survey , Mar.
29, 1996.

Final Audit Report on the Safety and Health Program, Department of the
Interior, Mar. 29, 1996.

Final Inspection Report on Selected Administrative Activities at the Colorado
State Office, Bureau of Land Management, Mar. 29, 1 996.

Final Inspection Report on Management of Third-Party Drafts at Selected
Locations, National Park Service , Mar. 29, 1 996.

Final Audit Report an Debt Management, Office of Surface Mining
Reclamation and Enforcement and Office of the Solicitor, Mar. 29, 1996.

Final Survey Report on Controls Over Violation Notices, United States Park
Police, National Park Service, Mar. 29, 1 996.

Final Audit Report on the American Samoa Legislature, American Samoa
Government, Mar. 22, 1996.

Final Audit Report on Management of Public Land, Commonwealth of the
Northern Mariana Islands , Mar. 20, 1 996.

Final Audit Report on the Award and Administration of Contract No. 1425-2-
CC-40- 12260 With Environmental Chemical Corporation Related to the
Summitville Mine Site Cleanup, Bureau of Reclamation, Mar. 14, 1996.

Operation & Maintenance of Government Furnished Quarters, U.S. Fish and
Wildlife Service, Jan 29, 1996.

Special Report on the Status of Improvements in Financial Management and
Program Operations, American Samoa Government , Dec. 22, 1995.

17

1025

Final Audit Report on Department of the Interior Compliance With
Limitations on Lobbying Activities, Dec. 15, 1995.

Final Audit Report for Your Information - 'Special Use Fees, National Park
Service Oct. 31, 1995.

Final Audit Report on the Wapalo Irrigation Project, Bureau of Indian
Affairs , Sept. 30, 1995.

Final Survey Report on Selected Administrative Activities at Region 6, U.S.
Fish and Wildlife Service, Sept. 30, 1995.

Final Audit Report on the Recovery of Operation and Maintenance Costs,
Columbia Basin Project. Bureau of Reclamation, Sept. 29, 1995.

Contracting for Reforestation and Forest Development, Bureau of Land
Management, Sept. 29, 1 995.

Final Audit Report on Followup of Recommendations Concerning the
Recovery of Operation and Maintenance Program Expenses, Bureau of
Reclamation, Sept. 29, 1996.

Final Audit Report on Federal Grants Administration, Guam Community
College, Aug. 22, 1995.

Final Audit Report on Management of International Activities, Division of
International Affairs, Bureau of Reclamation , July 7, 1995.

Final Audit Report on Administration of Selected Programs by the Northern
Arapaho Tribe , June 9, 1995.

In addition to the internal and contract audits performed by the 01G staff, the OIG
also reviewed and processed contract audits performed by other federal auditors
and Single Audits performed by non-federal auditors. 1 did not participate in
these audits, which are also listed in the Appendices of the semi-annual reports to
Congress disclosed above.

Other Reports

In November 2002, 1 signed on to an amicus brief to the U.S. Circuit Court of
Appeals for the Eleventh Circuit for the case Johnson r Bush. Copy supplied.

In 1999, in my capacity as United States Attorney, I proposed the Bail Reform
Amendment Act of 2000 and the Distribution of Marijuana Amendment Act of

18

1026

2000, which suggested changes to District of Columbia laws. Copies of both Acts
as introduced are supplied.

I served as a member of the U.S. District Court for the District of Columbia Civil
Justice Reform Act Advisory Group in 1992-1993. In accordance with the Civil
Justice Reform Act, passed by Congress in December 1990, the Advisory Group
was charged with investigating the causes of excessive cost and delay in the civil
justice system in the District of Columbia and making recommendations aimed at
improving the civil litigation process. The work of the Advisory Group was
embodied in the following report to the U.S. District Court (no copy available):

Report of the Civil Justice Reform Act Advisory Group (1993)

United States District Court for the District of Columbia
333 Constitution Avenue, NW
Washington, DC 20001

Following the District Court’s review of the recommendations contained in the
report, the Court adopted a Civil Justice Reform Act Plan that was filed on
November 30, 1993.

c. Supply four (4) copies of any testimony, official statements or other

communications relating, in whole or in pari, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.

Based on my present recollection and a thorough review of available records, 1 am
aware of the following, although it is possible that this list may not be exhaustive.

1 have made a good faith effort to be as comprehensive as possible and have
provided documents reasonably available to me. Because hearings before the
Council of the District of Columbia during the relevant period were recorded on a
reel-to-reel system, they are not reasonably accessible. In each instance, however,
a copy of my statement is supplied.

Testimony

Testimony on Offshore Oil and Gas Exploration before the Committee on Energy
& Natural Resources, U.S. Senate, May 18,2010. Transcript supplied.

Testimony as nominee to be Assistant Secretary for the Department of the Interior
before the Committee on Energy & Natural Resources, U.S. Senate, July 9, 2009.
Transcript supplied and video is available at http://www.c-
spanviden.org/nrogram/Hearingtocons .

Testimony as nominee to be a member of the Board of Elections and Ethics
before Committee on Government Operations, Council of the District of
Columbia, Apr. 1, 2004. A copy of my opening statement is supplied.

19

1027

Testimony on police overtime for court-related appearances before the
Subcommittee on District of Columbia Appropriations of the Committee on
Appropriations. U.S. House of Representatives, Apr. 4 , 2001 . Transcript
supplied.

Testimony on the DNA Sample Collection Act of 2001 before the Judiciary
Committee, Council of the District of Columbia, Mar. 8, 2001. A copy of my
opening statement is supplied.

Testimony on the Public Disclosure of Findings and Information in Cases of
Child Fatality or Near Fatality Amendment Act of 2000 before the Committee on
Human Services, Council of the District of Columbia, Nov. 30, 2000. A copy of
my opening statement is supplied.

Testimony on the Child and Youth Safety and Health Omnibus Amendment Act
of 2000 before the Committee on Human Services, Council of the District of
Columbia, Oct. 26, 2000. A copy of my opening statement is supplied.

Testimony on Amendments to the Drug-Related Nuisance Abatement Act and
Boarded Up Vacant Property Permissive Inference of Unlawful Entry Act before
the Committee on Consumer and Regulatory Affairs, Council of the District of
Columbia, June 1 4, 2000. A copy of my opening statement is supplied.

Testimony on Amendments to the Sentencing Laws of the District of Columbia
before the Judiciary Committee, Council of the District of Columbia, May 1 1,
2000. A copy of my opening statement is supplied.

Testimony on Amendments to the Controlled Substances Act to Move Marijuana
from Schedule V to Schedule III before the Judiciary Committee, Council of the
District of Columbia, May 10, 2000. A copy of my opening statement is supplied.

Testimony on Amendments to the Controlled Substances Act to Move Marijuana
from Schedule V to Schedule III before the Judiciary Committee, Council of the
District of Columbia, January 13, 2000. A copy of my opening statement and
press coverage are supplied.

Testimony on the Federal Peace Officer Act before the Judiciary Committee,
Council of the District of Columbia, Oct. 1 , 1 999. A copy of my written
statement is supplied.

Testimony on enforcement of drug control laws before the Subcommittee on
District of Columbia Appropriations of the Committee on Appropriations, U.S.
House of Representatives, Sept. 29, 1999. Transcript supplied.

20

1028

Testimony on Bail Reform Act before the Judiciary Committee, Council of the
District of Columbia, Sept. 20, 1 999. A copy of my opening statement is
supplied.

Testimony on pre-trial release of charged defendants before the Judiciary
Committee, Council of the District of Columbia, Mar. 1 0, i 999. A copy of my
opening statement is supplied.

Testimony before the Special Committee on Police Misconduct and Personnel
Management, Council of the District of Columbia, Apr. 29, 1 998. A copy of my
opening statement is supplied.

Testimony on Audit of Employee Housing at Grand Canyon and Yosemite
National Parks before the Subcommittee on Interior and Related Agencies of the
Committee on Appropriations, U.S. House of Representatives, Oct. 29, 1997.
Transcript supplied.

Testimony on Audit Report No. 96-1-1025, “Nevada Land Exchange Activities,
Bureau of Land Management," before the Subcommittee on National Parks,
Forests, and Lands of the Committee on Resources, U.S. House of
Representatives, July 30, 1996. Transcript supplied.

Testimony on the Federal-Commonwealth of the Northern Mariana Islands
Initiative on Labor, Immigration, and Law Enforcement and Related Northern
Mariana Islands Legislative Reforms before the Subcommittee on Native
American and Insular Affairs of the Committee on Resources, U.S. House of
Representatives, June 26, 1996. Transcript supplied.

Statement and Responses to Additional Committee Questions for the Record on
proposed budget for the Office of the Inspector General before the Subcommittee
on Interior and Related Agencies of the Committee on Appropriations, U.S.
House of Representatives, Mar. 27, 1996. Transcript supplied.

Testimony on the Audit of Special Use Fees, National Park Service, and on H.R.
2025 (Proposed Amendments to the Land and Water Conservation Fund Act of
1965) before the Subcommittee on National Parks, Forests, and Lands of the
Committee on Resources, U.S. House of Representatives, Oct. 26, 1995.
Transcript supplied.

Testimony as nominee to be Inspector General for the Department of the Interior
before the Committee on Energy & Natural Resources, U.S. Senate, Feb. 13,
1995. Transcript supplied.

21

1029

Writt en Communications

Comments on OAO Draft Report entitled, Oil and Gas Bonds: BLM Needs a
Comprehensive Strategy to Better Manage Potential Oil and Gas Well Liability,
Feb. 15,2011. Copy supplied.

Comments on OIG Final Report entitled. Bureau of Land Management's Oil and
Gas Inspection and Enforcement Program, Feb. 7, 201 1 . Copy supplied.

Comments on GAO Final Report entitled. Opportunities Exist to Capture Vented
and Flared Natural Gas, Which Would Increase Royalty Payments and Reduce
Greenhouse Gases, Feb. 3, 2011. Copy supplied.

Comments on OIG Final Report entitled. Bureau of Land Management Wild
Horse & Burro Program, Jan. 26, 2011. Copy supplied.

Comments on OIG Final Report entitled, Follow-Up To Office of Policy Analysis
Report, Review of Selective Aspects Of The Federal Helium Program , Jan. 3,
2011. Copy supplied.

Comments on OIG Final Report entitled. Inspector General ‘s Statement
Summarising the Major Management and Performance Challenges Facing the
Department of the Interior, Oct. 27, 2010. Copy supplied.

Comments on OIG Final Report entitled. Onshore Oil and Gas: BLM's
Management of Public Protests to its Lease Sales Needs Improvement , Oct. 26,
2010. Copy supplied.

Comments on GAO Draft Report entitled. Opportunities Exist to Capture Vented
and Flared Natural Gas, Which Would Increase Royalty Payments and Reduce
Greenhouse Gases, Oct. 12,2010. Copy supplied.

Comments on OIG Final Report entitled. Department of the Interior v
Management of Land Boundaries, Aug. 6, 201 0. Copy supplied.

Comments on GAO Draft Report entitled. Onshore Oil and Gas: BLM’s
Management of Public Protests to Its Lease Sales Needs Improvement, July 14,
2010. Copy supplied.

Comments on OIG Final Report entitled. Minerals Management Service: Royalty-
in-Kind Program ‘s Volume Verification Process, July 8, 201 0. Copy supplied.

Comments on GAO Final Report entitled, Oil and Gas Management: Interior's
Oil and Gas Production Verification Efforts Do Not Provide Reasonable
Assurance of Accurate Measurement of Production Volumes, June 18, 2010.

Copy supplied.

22

1030

Comments on GAO Final Report entitled, Offshore Oil and Gas Development:
Additional Guidance Would Help Strengthen the Minerals Management Service 's
Assessment of Environmental Impacts in the North Aleutian Basin, May 25, 201 0.
Copy supplied.

Comments on OIG Final Report entitled, Geothermal Royalties Evaluation , Apr.
22,2010. Copy supplied.

Comments on OIG Final Report entitled, BLM and MMS Beneficial Use
Deduction, Apr. 21, 2010. Copy supplied.

Comments on OIG Draft Report entitled. Minerals Management Service: Royalty-
in-Kind Program’s Volume Verification Process, Apr. 15,2010. Copy supplied.

Comments on OIG Final Report entitled, Department of the Interior ’s Roads
Program: The Dangers of Decentralization , Apr. 9, 2010. Copy supplied.

Comments on OIG Draft Report entitled. Department of the Interior’s
Management of Land Boundaries, Apr. 2, 2010. Copy supplied.

Comments on OIG Final Report entitled. Museum Collections: Preservation and
Protection Issues with Collections Maintained by the Bureau of Land
Management, Mar. 1 2, 20 1 0. Copy supplied.

Comments on GAO Draft Report entitled, Offshore OH and Gas Development :
Additional Guidance Would Help Strengthen the Minerals Management Service 's
Assessment of Environmental Impacts in the North Aleutian Basin, Mar. 1 , 2010.
Copy supplied.

Comments on GAO Draft Report entitled. Oil and Gas Management: Interior ‘s
Oil and Gas Production Verification Efforts Do Not Provide Reasonable
Assurance of Accurate Measurement of Production Volumes , Feb. 26, 2010.

Copy supplied.

Letter to Governor Dave Freudenthal re: pending oil and gas leases in Wyoming,
Feb. 19,2010. Copy and press coverage supplied.

Comments on GAO Final Report entitled. Surface Coal Mining: Financial
Assurances for, and Long-Term Oversight of; Mines with Valley Fills in Four
Appalachian States, Dec. 22, 2009. Copy supplied.

Letter to Governors Haley Barbour, Bobby Jindal, Rick Perry and Bob Riley re:
Gulf Security Act payments for drilling leases, Dec. 21, 2009. Copy and press
coverage supplied.

23

1031

Comments on GAO Final Report entitled. Surface Coal Mining: Characteristics
of Mining in Mountainous Areas of Kentucky and West Virginia, Nov. 1 0, 2009.
Copy supplied.

Comments on GAO Final Report entitled, MMS Could Do More to Improve the
Accuracy of Key Data Used to Collect and Verify Oil and Gas Royalties , Nov, 9,
2009. Copy supplied.

Comments on GAO Final Report entitled, Federal Lands: Enhanced Planning
Could Assist Agencies in Managing Increased Use of Off-Highway Vehicles, Oct.
27,2009. Copy supplied.

Comments on OIG Final Report entitled, Office of the Inspector General's
Statement Summarizing the Major Management and Performance Challenges
Facing the Department of the Interior, Oct. 21, 2009. Copy supplied.

Comments on GAO Final Report entitled. Federal Land Management: ELM and
the Forest Service Have Improved Oversight of the Land Exchange Process, but
Additional Actions Are Needed, Sept. 1 0, 2009. Copy supplied.

Comments on GAO Final Report entitled, Energy Policy Act of 2005: Greater
Clarity Needed to Address Concerns with Categorical Exclusions for Oil and Gas
Development under Section 390 of the Act, Sept. 8, 2009. Copy supplied.

Comments on GAO Report entitled, DC Criminal Justice System: Better
Coordination Needed Among Participating Agencies, Mar. 6, 2001. Copy
supplied.

Letter to Harold Brazil, Chair, Committee on the Judiciary, Council of the District
of Columbia, re: Bail Reform Act, Nov. 14, 2000. Copy supplied.

Letter to Linda Cropp, Chair, Council of the District of Columbia re:

Amendments to the Controlled Substances Act To Move Marijuana From
Schedule V to Schedule III, Washington, DC, July 3, 2000. Copy supplied.

Letter to Anthony A. Williams, Mayor, District of Columbia re: public disclosure
of records after the death of abused or neglected children, July 2000. No copy
available; press coverage supplied.

Letter to U.S. Senator Arlen Specter re: request for documents about investigation
into alleged technology transfers to China by defense contractors, Apr. 26, 2000.
No copy available; press coverage supplied.

Letter to Harold Brazil, Chair, Committee on the Judiciary, Council of the District
of Columbia, re: Amendments to the Controlled Substances Act. To Move

24

1032

Marijuana From Schedule V to Schedule III, Washington, DC, Jan. 21 , 2000.
Copy supplied.

Letter to Linda Cropp, Chair, Council of the District of Columbia re: issues
related to defendants on pretrial release, June 22, 1 999. Copy supplied.

Letter to the Council of the District of Columbia re: the need for increased
penalties for marijuana crimes, Apr. 26, 1999. Copy supplied.

Letter to Harold Brazil, Chair, Committee on the Judiciary, Council of the District
of Columbia, re; civil commitment in cases of mental retardation, 1 999. No copy
available; press coverage supplied.

Response to the Review of the Violent Crimes Task Force of the United States
Attorney’s Office for the District of Columbia, Oct. 26, 1998. Copy supplied.

Letter to the Council of the District of Columbia about anti-prostitution law, Sept.
11, 1998. No copy available; press coverage supplied.

Letter to The Honorable Arturo Watlington, Jr., Legislature of the Virgin Islands,
on Bill No. 21-0265 re: use of unobligated balances of Federal grants. Sept. 27,
1996. Copy supplied.

d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by yon, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk, [f you do rot have a copy of the speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary of its subject matter.
If you did not speak from a prepared text, famish a copy of any outline or notes
from which you spoke.

Based on my present recollection and a thorough review of available records, the
following is a list of my speaking engagements, although it is possible that this
list may not he exhaustive. I have made a good faith effort to be as
comprehensive as possible and have provided documents reasonably available to
me.

November 18, 2010: Remarks, Office of Surface Mining Oversight Improvement
One-Year Anniversary. A copy of my remarks is supplied.

August 30, 2010: Guest speaker, Southern Governors’ Association 2010 Annual
Meeting. A copy of my remarks is supplied.

25

1033

July 12, 2010: Keynote speaker, Federally Employed Women (FEW) 41“
National Training Program, Agency Pre-Conference Training Forum. A copy of
my remarks is supplied.

March 26, 2010: Panelist, 30 th Anniversary of Women’s History Month Program,
U.S. Department of the Interior. I have no notes, transcript or recording. The
address of the Department is 1 849 C Street N W, Washington, DC 20240.

March 24, 2010: Remarks, Celebrating Ten Years of the National landscape
Conservation System, U.S. Department of the Interior. A copy of my remarks is
supplied,

March 19, 2010: Guest speaker, Memorial Tribute to Michael Coe, Crowell &
Moring LLP. A copy of my remarks is supplied.

February 25, 2010: Remarks, Introduction of Secretary of the Interior Ken
Salazar, Department of the Interior Black History Month Program, U.S.
Department of the Interior. I have no notes, transcript or recording. The address
of the Department is 1849 C Street NW, Washington, DC 20240.

February 3, 2010: Panelist, “How to Become a Judge,” Women’s Bar Association
of Washington D C. and American Constitution Society. Video available on-line
at the links below. My remarks were made in segments 6 and 7 and I responded
to a question in segment 10.

Part 1 : http://www.voutube.com/watch?v=OLypUm BKXc&feature=rela1ed
Part 2: http://www.voutube.com/watch2v~Sk D7NH oL z4&feature= related
Part 3: http://www.voutube.ccun/watch?v ; =oceR8B l cl k&f eat ure=relat ed
Part 4: http://www.voutub e .com/watch?v-Q2B0-9N2Ibw&featurem:elated
Part 5: ht tn://www.voutube.comAvatch?v"nCYkDcoi hW4 &feature^related
Part 6: http: //www.voutube.com/watch?v~wAz2xPbC9n w &feature=related
Part 7: h ttD://www.voutube.com/wat ch?v=S9 9v3kFFkRM&featare=ielated
Part 8: http://www.voutube.com/watch?v=ecW VrSaTO&feanire=related
Part 9: http://www.voutube.coin/watch7vHli9ipTAguE
Part 10: http://www. voutube.com/wat ch ?v=qO iCCtl6Y5c&feature=related

November 2, 2009: Remarks, White House Clean Energy Economy Forum. A
copy of my remarks is supplied and video is available at http://www.c-
Spanvideo.org/program/EnergyEco .

October 27, 2009: Remarks, Office of Surface Mining (OSM) All-Hands
Meeting. I have no notes, transcript or recording. The address of OSM is South
Interior Building, 195 1 Constitution Avenue NW, Washington, DC 20240.

26

1034

September 24, 2009: Remarks, Ceremony celebrating update of the Manual of
Surveying Instructions. U.S. Department of the Interior. A copy of my remarks is
supplied.

September 22, 2009: Remarks, Minerals Management Service/Minerals Revenue
Management All-Hands Meeting, Denver, Colorado. 1 have no notes, transcript
or recording. The address of MMS is 1 849 C Street, Washington, DC 20240.

September 22, 2009: Remarks, Minerals Management Service/Royalty In-Kind
(R1K) All-Hands Meeting, Denver, Colorado. 1 have no notes, transcript or
recording, The address of MMS is 1849 C Street, Washington, DC 20240.

August 31, 2009: Remarks, Bureau of Land Management Southern Nevada
District Office All-Hands Meeting, Las Vegas, Nevada. I have no notes,
transcript or recording. The address of BLM is 1 849 C Street, Washington, DC
20240.

August 31, 2009: Remarks, Bureau of Land Management Renewable Energy
Summit. A copy of my remarks is supplied and video is available at
httD://www.ntc.blm.gov/krc/uploadsi406/ODeninE Remarks Kevnote.html .

October 21, 2008: Remarks, Investiture of Heidi M. Pasichow as Associate Judge,
Superior Court of the District of Columbia. A copy of my remarks is supplied.

June 29, 2008: Guest speaker, Baccalaureate Service, Faith Moravian Church. A
copy of my remarks is supplied.

June 27, 2008: Moderator of Plenary Session, Virgin Islands Leadership Summit,
Virgin Islands Institute of Development. I have no notes, transcript or recording.
The address of the Institute is 1455 Pennsylvania Avenue NW, Suite 400,
Washington, DC 20004.

May 10, 2008: Commencement Address, “What Lies Within You,” Moravian
Theological Seminary, Central Moravian Church. A copy of my remarks is
supplied.

April 1 1, 2008: Remarks, 2008 Judicial & Bar Conference, Asian Pacific
American Bar Association of the Greater Washington DC Area, “Increasing
Diversity on the Bench: Navigating the Judicial Nomination Process.” 1 have no
notes, transcript or recording.

March 31, 2008: Panel ist, Institute of Caribbean Studies (ICS) Young
Professionals Initiative and Embassy of Barbados, Embassy Evening Series,
“From the Legislative Halls to the Corporate Boardrooms: Women Making
History in the 21 51 Century.” An outline of my remarks is supplied.

27

1035

March 25, 2008: Panelist, “Intimate Conversations: Pearls of Wisdom,” hosted
by the Ladies of Epsilon Sigma Iota Sorority, Inc., Howard University School of
Law. I have no notes, transcript or recording. The address of the School of Law
is 2900 Van Ness Street NW, Washington, DC 20008.

February 12, 2008: Panelist, Women’s Bar Association (WBA) of the District of
Columbia, “Carving Pathways to Success.” I have no notes, transcript or
recording. The address of the WBA is 2020 Pennsylvania Avenue NW, Suite
446, Washington, DC 20006.

August 4, 2007: Keynote address, Virgin Islands Commission on the Status of
Women, 2007 Virgin Islands Women’s Hall of Fame Ceremony. A copy of my
remarks is supplied.

May 26, 2007: Remarks, Tribute to Brother Donald Morant, Faith Moravian
Church. A copy of my remarks is supplied.

April 2007: Panelist, Girl Scout Troop 5114 Gold Award Ceremony, Washington,
DC. I have no notes, transcript or recording. The address of the Girl Scout
Council of the Nation’s Capital is 430 1 Connecticut Avenue NW, Washington,
DC 20008.

August 23 - 24, 2006: Guest speaker. Judicial Selection Processes, Sponsored by
the Virgin Islands Bar Association and The Rotary Club, Presentations on St.
Thomas and St. Croix, Virgin Islands. A copy of my remarks is supplied.

June 23, 2006: Moderator of Plenary Session, Virgin Islands Leadership Summit,
Virgin Islands Institute of Development. I have no notes, transcript or recording.
The address of the Institute is 1455 Pennsylvania Avenue NW, Suite 400,
Washington, DC 20004,

March 12, 2006: Guest speaker. Women’s Fellowship Anniversary Service, Faith
Moravian Church. A copy of my remarks is supplied.

November 15, 2005: Guest speaker. Discovery Communications, Inc. Legal
Department. An outline of my remarks is supplied.

October 17, 2005: Keynote address, “Managing a High Profile Export
Enforcement Case,” American Conference Institute National Forum on Export
Enforcement and Investigations. An outline of my remarks is supplied.

September 16, 2005: Panelist, Harvard Law School Celebration of Black Alumni,
“Promises to Keep-Serving the Public Trust.” I have no notes, transcript or
recording. The address of HLS is 1 563 Massachusetts Avenue, Cambridge,
Massachusetts 02138.

28

1036

August 2005: Panelist, Georgetown Law Center, Professional Career and
Litigation Discussion for first year law students. I have no notes, transcript or
recording. The address of Georgetown Law Center is 600 New Jersey Avenue
NW, Washington, DC 20001.

July 2005: Remarks, Crowell & Moring LLP Minority Reception for first year
law students. I have no notes, transcript or recording. The address of Crowell &
Moring is 1001 Pennsylvania Avenue NW, Washington, DC 20004.

June 27, 2005: Guest speaker, 2005 Annual Road Show Reception, “Celebrating
Law Firm Practice in the Nation’s Capital from an African-American
Perspective.” An outline of my remarks is supplied.

May 28, 2005: Remarks, Tribute to Sister Maxine Garrett, Faith Moravian
Church. A copy of my remarks is supplied.

May 20, 2005: Keynote address, Patricia Roberts Harris Graduation Dinner Gala,
Black Law Students Association, The George Washington University Law
School. A copy of my remarks is supplied.

May 2005: Remarks, Crowell Sl Moring LLP Reception in conjunction with the
annual meeting of the Coalition of Bar Associations of Color. I have no notes,
transcript or recording. The address of Crowell & Moring is 1001 Pennsylvania
Avenue NW, Washington, DC 20004.

March 16, 2005: Co-Chair Remarks, Going the F.xtra Mile Fundraiser for
Whitman-Walker Clinic Legal Services Program. A description of my remarks is
supplied.

February 4, 2005: Opening remarks. Meeting of the National Association of State
Election Directors. I have no notes, transcript or recording. The address of the
NASED is 12543 Westella, Suite 100, Houston, Texas 77077.

February 2005: Guest speaker, District of Columbia Bar Association, presentation
on Judicial Nomination Commission. 1 have no notes, transcript or recording.

The address of the Bar Association is 1 1 0 1 K Street NW, Suite 200, Washington,
DC 20005.

November 12, 2004: Keynote address, Howard University School of Law, Wiley
A. Branton Howard Law Journal Memorial Symposium. A copy of my remarks
is supplied

June 25, 2004: Moderator of Plenary Session, Virgin Islands Leadership Summit,
The Virgin Islands Institute of Development. I have no notes, transcript or
recording. The address of the Institute is 1455 Pennsylvania Avenue NW, Suite
400, Washington, DC 20004.

29

1037

March 24, 2004: Co-Chair Remarks, Going the Extra Mile Fundraiser for
Whitman- Walker Clinic Legal Services Program. An outline of my remarks is
supplied.

March 18, 2004: Panelist, 2004 District of Columbia Judicial & Bar Conference,
“You Be the Judge - Uncovering the Judicial Application Process.” I have no
notes, transcript or recording. The address of the Bar Association is 1 1 01 K
Street NW, Suite 200, Washington, DC 20005.

March 2, 2004: Participant, Book discussion on African Woman: HerSiory
Through Time by Cynthia Jacobs Carter. I have no notes, transcript or recording.
The address of Dr. Carter is Afncare House, 440 R Street NW, Washington, DC,
20001 .

December 11, 2003: Remarks, Portrait Presentation Ceremony for the Honorable
Norma Holloway Johnson, United States District Judge. A copy of my remarks is
supplied.

June 9, 2003: Commencement address, Benjamin Banneker Academic High
School. A copy of my remarks is supplied.

May 15, 2003: Remarks, 2003 Associates Campaign, Legal Aid Society of the
District of Columbia. I have no notes, transcript or recording. The address of the
Legal Aid Society is 1331 H Street NW, Suite 350, Washington, DC 20005.

April 8, 2003: Remarks, District of Columbia Bar Board of Governors. I have no
notes, transcript or recording. The address of the Bar Association is 1 101 K
Street NW, Suite 200, Washington, DC 20005.

March 28, 2003: Panelist, District of Columbia Bar Conference, re: Judicial
Nomination Commission work and selection process. I have no notes transcript
or recording, but Bar Association coverage is supplied. The address of the Bar
Association is 1101 K Street NW, Suite 200, Washington, DC 20005.

March 13, 2003: Co-Chair Remarks, Going the Extra Mile Fundraiser for
Whitman-Walker Clinic Legal Services Program. A copy of my remarks is
supplied.

June 28, 2002: Keynote address, First Annual Alexander Farrelly Public Service
Award, St. Thomas, Virgin Islands. A copy of my remarks is supplied.

June 24, 2002: Speaker, Summer Associate Luncheon Program, Crowell &
Moring LLP. I have no notes, transcript or recording. The address of Crowell &
Moring is 1001 Pennsylvania Avenue NW, Washington, DC 20004.

30

1038

June 19, 2002: Keynote address. Whitman Walker Clinic Juneteenth Event,
Washington, DC. I have no notes, transcript or recording. The address of the
Clinic is 1 70 1 14* Street NW, Washington, DC 20009.

June 1, 2002: Remarks, Introduction of Honoree, Maryland Virgin Islands
Association Fifth Annual Outstanding Citizen Awards Breakfast, Lanham, MD. I
have no notes, transcript or recording. The website for the Virgin Islands
Association of the DC Metropolitan Area is www.viadc.org.

May 22, 2002: Guest speaker. District of Columbia Bar Leadership Meeting,
Washington, DC. I have no notes, transcript or recording. The address of the Bar
Association is 1 101 K Street NW, Suite 200, Washington, DC 20005.

March 10, 2002: Guest speaker, Women’s Fellowship Anniversary Service, Faith
Moravian Church. A copy of my remarks is supplied.

December 10, 2001 : Keynote address, “SEC Watchdog: Financial Fraud,”
Crowell & Moring LLP Business Crimes Meeting. An outline of my remarks is
supplied.

November 29, 2001: Remarks, Supreme Court Judicial Fellows and Interns,
Supreme Court, Washington, DC. I have no notes, transcript or recording. The
address of the Supreme Court is One First Street NE, Washington, DC 20543.

November 16, 2001: Award acceptance remarks, “Diakonia” Award, The
Cathedral Church of All Saints, St. Thomas, Virgin Islands. A copy of my
remarks is supplied.

September 20, 2001: Keynote address. Women’s Bar Association (WBA) of the
District of Columbia Annual Fall Kick-Off. A copy of my remarks is supplied.

August 1, 2001 : Remarks, Law Clerk Speakers Program, United States
Courthouse. I have no notes, transcript or recording. The address of the U.S.
District Court is 333 Constitution Avenue NW, Washington, DC 20001.

July 16, 2001: Remarks, Summer Associate Luncheon Program, Crowell &
Moring LLP. I have no notes, transcript or recording. The address of Crowell &
Moring is 1001 Pennsylvania Avenue NW, Washington, DC 20004.

June 22, 2001: Keynote address, Virgin Islands Judicial Conference, St. Thomas,
Virgin Islands. A copy of my remarks is supplied.

June 4, 2001 : Keynote address, “What Do Government Prosecutors Really Look
For?” Crowell & Moring LLP Health Care Provider Seminar, An outline of my
remarks is supplied.

31

1039

May 22, 2001 : Award acceptance remarks, Janet Reno Torchbearer Award,
Women’s Bar Association of the District of Columbia. A copy of my remarks is
supplied.

May 10, 2001 : Appreciation remarks. Farewell event for Wilma Lewis as United
States Attorney for the District of Columbia. I have no notes, transcript or
recording. The address of the Office is 555 4 01 Street NW, Washington, DC
20530.

May 9, 2001: Award acceptance remarks, Bethune-DuBois Institute, 16 lh Annual
Awards Dinner, Washington, DC. 1 have no notes, transcript or recording. The
address of the Institute is 8630 Fenton Street, Suite 615, Silver Spring, Maryland
20910.

May 3, 2001: Remarks, 7' 11 Annual Virgin Islands High School Appellate Moot
Court Competition, sponsored by the Territorial (now Superior) Court of the
Virgin Islands and the Virgin Islands Bar Association. An outline of my remarks
is supplied.

April 1 8, 2001 : Remarks, Swearing-in Ceremony for new Assistant United States
Attorneys, Washington, DC. A copy of the script I used is supplied. The script
was also used on the other occasions I performed this ceremony. These dates are
listed below:

April 6, 2001
March 30, 2001
October 6, 2000
October 22, 1999
October 16, 1999
March 12, 1999
October 16, 1998
April 17, 1998

April 9, 2001 and April 5, 1999: Remarks, INS Naturalization, Children’s
Citizenship Day. A copy of my script is supplied.

March 28, 2001: Keynote address, INS Arlington Aslyum Office Women’s
History Month Program, “Celebrating Women of Courage and Vision.” A copy
of my remarks is supplied.

March 23, 2001 : Remarks, Farewell Luncheon for Jimmy Carter, Assistant
Director-in-Charge of FBI’s Washington Field Office. A copy of my remarks is
supplied.

March 22, 2001 : Panelist, George Mason University, “African-American Women
and the Shaping of Public Policy.” An outline of my remarks is supplied.

32

1040

March 19, 2001: Guest speaker. Federal City Council Executive Committee
Meeting. An outline of my remarks is supplied.

March 13, 2001: Keynote address. National Youth Leadership Forum on Law.

An outline of my remarks and my notes are supplied, along with press coverage.

March 8, 2001 : Panelist, Embassy of South Africa, International Women’s Day
Panel Discussion. An outline of my remarks is supplied.

February 6, 2001: Award acceptance remarks, Charlotte E. Ray Award
Ceremony, Greater Washington Area Chapter of the Washington Bar Association.
A copy of my remarks is supplied.

February 2, 200 1 : Investiture remarks. Investiture of John Ramsey Johnson, as
Associate Judge, Superior Court of the District of Columbia. A copy of my
remarks is supplied.

January 19, 2001: Remarks, Introduction of Attorney General Janet Reno, United
States Attorney’s Office. A copy of my remarks is supplied.

January 1 8, 2001 : Guest speaker, Ceasefire Presentation for Patrol Service Area
102 Community Meeting, Neighborhood Public Safety Committee, Washington,
DC. I have no notes, transcript or recording. The address of the Committee is
640 10 th Street NE, Washington, DC 20002.

January 14, 2001: Award acceptance remarks, Dr. Martin Luther King Jr., Dream
Keepers Award Ceremony, MLK, Jr., Celebration Day Committee, Inc. 1 have no
notes, transcript or recording.

January 11, 2001: Keynote address. Department of Agriculture Martin Luther
King Day Celebration. A copy of my remarks is supplied.

December 1 2, 2000: Opening remarks, “The Future of Juvenile Justice: The
Importance of Listening to Youth” Conference, Office of Juvenile Justice and
Delinquency Programs, U.S. Department of Justice. I have no notes, transcript or
recording. The address of the DOJ is 950 Pennsylvania Avenue NW,

Washington, DC 20530.

December 7-8, 2000: Opening and Closing remarks. United States Attorney’s
Office Advanced Criminal Training Conference. A copy of my notes is supplied.

December 5, 2000: Panelist, White House Millenium Council, The President’s
Initiative for One America and Howard University, “Africana Women at the
Dawn of the New Millenium: The Summit.” I have no notes, transcript or

33

1041

recording. The address of the White House is 1600 Pennsylvania Avenue NW,
Washington, DC 20500.

December 1, 2000: Guest speaker, Seaton Elementary School Program, sponsored
by George Washington University’s Americorps Program, re: community
prosecution. I have no notes, transcript or recording. The address of the GWU is
805 21 s ' Street NW, Washington, DC 20052.

November 18, 2000: Opening remarks. Weed and Seed City-Wide Conference,
Washington, DC. A copy of my remarks is supplied.

November 16, 2000; Remarks, United States Attorney’s Office Annual Awards
Ceremony. A copy of my remarks is supplied.

November 8, 2000: Opening remarks. United States Attorney’s Office Fall
Federal Agent Orientation. A copy of my remarks is supplied.

November 2, 2000: Remarks, Fourth District Coummunity Meeting, Metropolitan
Police Department. I have no notes, transcript or recording. The address of the
MPD is 300 Indiana Avenue NW, Washington, DC 20001 .

October 27, 2000: Remarks, Investiture of Thomas J. Motley as Associate Judge,
Superior Court of the District of Columbia. A copy of my remarks is supplied.

October 26, 2000: Guest speaker. Rotary Club of Falls Church, Falls Church,VA.
A copy of my remarks is supplied.

October 19, 2000: Remarks, Metropolitan Police Department’s Fifth District and
Citizens’ Advisory Council 19th Annual Awards and Recognition Banquet. A
copy of my remarks is supplied.

October 13, 2000: Keynote address. Family Life Center Foundation Conference
re: Domestic Violence. A copy of my remarks is supplied.

October 13, 2000: Keynote address, 12th Annual National Asian Pacific
American Bar Association Convention, “Freedom, Justice and Equality:
Reaffirming Our Commitment.’’ A copy of my remarks is supplied.

September 28, 2000: Remarks, Sixth District “Operation Ceasefire’’ Townhall
Meeting. An outline of my remarks is supplied.

September 19, 2000: Panelist, University of the District of Columbia Law School,
Women’s Law Society Panel. 1 have no notes, transcript or recording. The
address of the law school is 4200 Connecticut Avenue N W, Washington, DC
20008.

34

1042

September 6, 2000: Guest speaker, Zonta Club of Washington DC Dinner. A
copy of my notes is supplied.

August 26, 2000: Award acceptance remarks, Caribbean American Intercultural
Organization, Inc., 38 lh Anniversary of Caribbean Independence, 42 nd
Anniversary of CAIO. A copy of my remarks is supplied.

August 15, 2000: Welcome remarks. Public Corruption Training for Federal
Agency IG Investigators. A copy of my remarks is supplied.

August 12, 2000: Guest speaker, Trinidad Ivy City Community Dedication and
Celebration, sponsored by the Trinidad Concerned Citizens for Reform. I have no
notes, transcript or recording. The address of the TCCR is 1 5 10 Monte] lo Avenue
NE, Washington, DC 20002.

August 9, 2000: Opening remarks. National Black Prosecutors Association
Conference. A copy of my remarks is supplied.

August 2, 2000: Remarks, 17th Annual National Night Out Kick-Off Ceremony.

A copy of my remarks is supplied.

August 2, 2000: Keynote address, Women in Federal Law Enforcement Awards
Luncheon. A copy of my remarks is supplied.

August 1, 2000: Guest speaker, Young Lawyers White Collar Crime Section of
the DC Bar Association Luncheon. A copy of my notes is supplied.

July 20, 2000: Guest speaker, Superior Court of the District of Columbia Drug
Intervention Program. A copy of my notes is supplied.

July 17, 2000: Opening remarks. National Conference for the Organized Crime
Drug Enforcement Task Force. A copy of my remarks is supplied.

July 6, 2000: Remarks, Fourth District Coummunity Meeting, Metropolitan Police
Department. A copy of my notes is supplied

June 28, 2000: Remarks, Hate Crimes Summit, U.S. Department of Justice. A
copy of my remarks is supplied.

June 1 7, 2000: Remarks, The Jamaica Progressive League, Inc. “Controlling
Crime & Violence in Jamaica." A copy of my remarks is supplied.

June 12, 2000: Remarks, Drug Education For Youth (DEFY) Graduation
Program. A copy of my remarks is supplied.

35

1043

June 9, 2000: Remarks, Assistant United States Attorneys Association Annual
Banquet and Awards Presentation. A copy of my notes is supplied.

June 8, 2000: Guest speaker. Department of the Interior Office of the Solicitor
Brown Bag Lunch Series. A copy of my notes is supplied.

June 8, 2000: Guest speaker, Public Safety Town Hall Meeting, “Taking A Bite
Out of Crime”, sponsored by Councilmember Vincent Orange Sr., Council of the
District of Columbia. A copy of my remarks is supplied.

June 7, 2000: Panelist, Public/Private Partnerships, “The Elements of Succesful
Partnerhips.” A copy of my remarks is supplied.

June 5, 2000: Opening remarks. United States Attorney’s Office Summer Intern
Orientation. A copy of my notes is supplied.

June 3, 2000: Award acceptance remarks, Maryland Virgin Islands Association.

A copy of my remarks is supplied.

May 31, 2000: Remarks, United States Attorney’s Office 20th Annual Law
Enforcement Awards Ceremony. A copy of my remarks is supplied.

May 30, 2000: Remarks, National Bar Association, Annual Supreme Court
Swearing-in Ceremony. I have no notes, transcript or recording. The address of
the NBA is 1225 1 l‘ h Street NW, Washington, DC 20001.

May 12, 2000: Guest speaker, Meeting with Federal Law Clerks. A copy of my
notes is supplied.

April 27, 2000: Remarks, United States Capitol Police Retirement Luncheon for
Chief Gary Abrecht. A copy of my remarks is supplied.

April 27, 2000: Remarks, Third District Citizens' Advisory Council Meeting. A
copy of my remarks is supplied.

April 24, 2000: Guest speaker, U.S. Courts in DC, Law Clerks’ Speakers
Program. I have no notes, transcript or recording. The address of the U.S.
District Court is 333 Constitution Avenue NW, Washington, DC 20001 .

April 24, 2000: Remarks, Southwest Neighborhood Assembly Annual Meeting,
Washington, DC. 1 have no notes, transcript or recording, but SWNA coverage is
supplied. The address of the SWNA is 401 M Street SW, Washington, DC
20024.

April 18, 2000: Remarks, Fulton House of Hope/Gospel Rescue Ministries
Annual Open House. A copy of my remarks is supplied.

36

1044

April 13, 2000: Remarks, United States Attorney’s Office Crime Victims Rights
Awards Ceremony. A copy of my remarks is supplied.

April 12, 2000: Panelist, Litigation Forum of the DC Women’s Bar Association,
Women in Law Enforcment Luncheon. I have no notes, transcript or recording.
The address of the WBA is 2020 Pennsylvania Avenue NW, Suite 446,
Washington, DC 20006.

April 1 1 , 2000: Remarks, Meeting with Half Hollow Hills School Children from
New York, Half Hollow Hills Center School District. I have no notes, transcript
or recording. The address of the District is 525 Half Hollow Road, Dix Hills,

New York 11746.

April 10, 2000: Remarks, Sixth District Citizens’ Advisory Council Meeting. A
copy of my remarks is supplied.

April 9, 2000: Guest speaker. Metropolitan African Methodist Episcopal Program,
“Community Prosecution and Community Participation.” An outline of my
remarks is supplied.

April 6, 2000: Remarks, Near Northeast Citizens Against Crime & Drugs 1 5th
Anniversary Celebration. A copy of my remarks is supplied.

March 3 1 , 2000: Remarks, Washington Area Broadcasters Association annual
ascertainment meeting on news needs of the city. I have no notes, transcript or
recording. The WABA does not have a physical address.

March 28, 2000: Remarks, Ward 8 Town Hall Meeting, Washington, DC. An
outline of my remarks is supplied.

March 27, 2000: Panelist, Southwest Neighborhood Assembly Annual Meeting.

A copy of my remarks is supplied.

March 23, 2000: Remarks, United States Attorney’s Office Civil Division Retreat
A copy of my notes is supplied.

March 22, 2000: Guest speaker, National Park Service, National Capital Police
Women’s History Month Program. A copy of my remarks is supplied.

March 17, 2000: Keynote address, Metro Transit Police Recruit Graduation
Ceremony. A copy of my remarks is supplied.

March 16, 2000: Remarks, Howard University School of Law, Women’s History
Month Program. An outline of my remarks is supplied.

37

1045

March 15, 20G0: Panelist, Fourth District Criminal Justice Summit, sponsored by
Metropolitan Police Department and the Fourth District Citizens’ Advisory
Council. A copy of my remarks is supplied.

March 13, 2000: Award acceptance remarks, Africana Women at the Dawn of the
New Millennium Exhibition and Program. A copy of my remarks is supplied.

March 9, 2000: Panelist, President’s Council on Integrity and Efficiency and the
Executive Council on Integrity and Efficiency Annual Conference, “Inspectors
General Relationship with Customers and Other Stakeholders.” An outline of my
remarks is supplied.

March 7, 2000: Guest speaker, Meeting with Judges of the U.S. District Court for
the District of Columbia. A copy of my rotes is supplied.

March 3, 2000: Keynote address, District of Columbia Bar Winter Convention. A
copy of my remarks is supplied.

March 1, 2000: Guest speaker, Second District Citizens’ Advisory Council
Meeting. Copies of my remarks and notes are supplied.

February 24, 2000: Keynote address, “Neighbors Who Care” Annual Awards
Luncheon. A copy of my remarks is supplied.

January 19, 2000: Remarks, North Capital Corridor Revitalization Committee
Monthly Meeting. A copy of my remarks is supplied.

January 13, 2000: Remarks, Second District Advisory Neighborhood Commission
Meeting, Metropolitan Police Department. I have no notes, transcript or
recording. The address of the MPD is 300 Indiana Avenue NW, Washington, DC
20001.

2000: Remarks, Precision Policing Project, Washington, DC. A copy of my
remarks is supplied.

2000: Welcome remarks, DC Rape Crisis Center Volunteers. A copy of my
remarks is supplied.

December 15, 1999: Remarks, Seventh District Community Meeting. A copy of
my remarks is supplied.

December 1 0, 1 999: Guest speaker. Town Hall Meeting sponsored by Mayor
Anthony Williams and Councilmember Jim Graham, Council of the District of
Columbia. A copy of my remarks is supplied.

38

1046

December 8, 1999: Remarks, Patrol Service Area 510 Community Meeting. A
copy of my remarks is supplied.

December 7, 1999: Remarks, First District Citizens’ Advisory Council Meeting.

A copy of my remarks is supplied.

November 11,1 999: Award acceptance remarks. Institute of Caribbean Studies
6th Annua! Caribbean American Heritage Awards Dinner. A copy of my remarks
is supplied.

November 9, 1999: Opening remarks. Eighth International Nigerian Organized
Crime Conference. A copy of my remarks is supplied.

October 28, 1 999: Remarks, Department of Justice Hate Crimes Conference. A
copy of my remarks is supplied.

October 20, 1999: Opening remarks. Child Fatality Review Committee Quarterly
Meeting. A copy of my notes is supplied.

October 19, 1999: Remarks, Child Physical Abuse Joint Training Program. A
copy of my notes is supplied.

October 2, 1999: Remarks, Introduction of Honorees Walter & Juta Lewis,
Moravian Church Virgin Islands Conference Second Annual Recognition
Banquet. A copy of my remarks is supplied.

September 20, 1999: Remarks, Bloomingdale Civic Association Meeting. A copy
of my remarks is supplied.

September 14, 1999: Opening remarks, United States Attorney’s Office Civil
Division Training. A copy of my remarks is supplied.

August 11, 1999: Award acceptance remarks. Founders’ Award, National Black
Prosecutors Assocation Annual Convention. A copy of my remarks is supplied.

August 5, 1999: Keynote address, Asian Pacific American Bar Assocation of the
Greater Washington Area Annual Installation Dinner. A copy of my remarks is
supplied.

August 4, 1 999: Keynote address, National Assocation of Black Customs
Enforcement Officers Luncheon. A copy of my remarks is supplied.

August 3, 1 999: Remarks, National Night Out Kick-Off Ceremony. A copy of
my remarks is supplied.

39

1047

August 3, 1999: Keynote speaker, U.S. Capital Police Recruit Graduation
Ceremony. A copy of my remarks is supplied.

August 2, 1999: Remarks, United States Attorney’s Office-Wide Address. An
outline of my remarks is supplied.

July 28, 1 999: Keynote speaker, Mid-Northeast Collaborative Office Technology
Program. A copy of my notes is supplied.

July 23, 1999: Remarks, United States Information Agency, International Visitor
Program, “The Role of Legislators in a Democratic Society.” A copy of my
remarks is supplied.

July 8, 1999: Panelist, Washington Area Legal Recruitment Adminstration
Association, Minority Summer Associate Reception. An outline of my remarks is
supplied.

June 25, 1999: Remarks, Moderator of Plenary Session, Virgin Islands Leadership
Summit, “Agenda for the Year 2000," sponsored by the Virgin Islands Institute of
Development A copy of my notes is supplied.

June 23, 1999: Panelist, DC Criminal Justice System Panel, sponsored by
Counciimember Harold Brazil, Council of the District of Columbia. A copy of
my notes is supplied.

June 22, 1999: Remarks, Drug Education For Youth (DEFY) Graduation
Ceremony. A copy of my remarks is supplied.

June 11, 1999: Remarks, Assistant United States Attorneys Association Annual
Banquet and Awards Presentation. A copy of my remarks is supplied.

June 10, 1999: Remarks, United States Attorney’s Office Health Care Fraud Task
Force Meeting. Copies of my remarks and notes are supplied.

June 7, 1999: Opening remarks, United States Attorney’s Office Summer Intern
Orientation. I have no notes, transcript or recording. The address of the U.S.
Attorney’s Office is 555 4 lh Street NW, Washington, DC 20001 .

May 28, 1999: Remarks, Fourth District Community Meeting. A copy of my
notes is supplied.

May 18, 1999: Opening remarks, Training Program for DMV Officials. A copy
of my notes is supplied.

May 7, 1999: Remarks, Amidon Elementary School Law Day Celebration. A
copy of my remarks is supplied.

40

1048

May 5, 1999: Opening and Closing remarks, United States Attorney’s Office
Crime Victims Rights Awards Ceremony. A copy of my remarks is supplied.

May 5, 1999: Keynote address, AARP Consumer University re: fraud against the
elderly. A copy of my remarks is supplied.

April 15, 1999: Remarks, Sixth District Community Meeting. A copy of my
notes is supplied.

April 14, 1999: Remarks, Judiciary Center Building Fitness Center Grand Re-
Opening. A copy of my remarks is supplied.

April 14, 1999: Remarks, Access to Justice Initiative Partnership Meeting with
Asian-Pacific American community. A copy of my remarks is supplied.

April 6, 1999: Panelist, Bureau of Justice Assistance National Partnership
Meeting. An outline of my remarks is supplied.

March 31, 1999: Opening remarks, United States Attorney’s Office Women’s
History Program. A copy of my remarks is supplied.

March 31, 1999: Remarks, Naylor Dupont Advisory Neighborhood Commision
7B Meeting, Metropolitan Police Department. I have no notes, transcript or
recording. The address of the MPD 300 Indiana Avenue NW, Washington, DC
20001 .

March 30, 1999: Remarks, Ward 7 Town Hall Meeting, sponsored by
Councilmember Kevin Chavous, Council of the District of Columbia. A copy of
my remarks is supplied.

March 29, 1999: Department of State 41st State Seminar. A copy of my remarks
is supplied.

March 26, 1999: Panelist, Women’s History Month Program, “Breaking the Glass
Ceiling,” The Women’s History Month Committee, United States Court for the
D.C. Circuit. I have no notes, transcript or recording. The address of the Court is
333 Constitution Avenue NW, Washington, DC 20001.

March 25, 1999: Panelist, Charlotte E. Ray American Inn of Court, “Ethics,
Integrity and Professional Responsibility.” A copy of my remarks is supplied.

March 17, 1999: Remarks, DC Bias-Related Crimes Task Force Meeting. A copy
of my remarks is supplied.

41

1049

March 15, 1999: Opening remarks. Weed and Seed Steering Committee Meeting.
A copy of my remarks is supplied.

March l, 1999: Remarks, Meeting with “Survivors of Homicide.” A copy of my
remarks is supplied.

February 24, 1999: Opening remarks, Training Conference, Children as Witnesses
to Domestic Violence, “Strategy for Healing.” A copy of my remarks is supplied.

February 22, 1999: Keynote address. Executive Office of United States Attorneys
African-American History Month Program. A copy of my remarks is supplied.

February 22, 1 999: Honorary Host remarks, “Neighbors Who Care” Business
Card Exchange Mixer. A copy of my remarks is supplied.

February 19, 1999: Opening remarks. United States Attorney’s Office African
American History Month Celebration. A copy of my remarks is supplied.

February 16 and 18, 1999: Keynote address, INS’s African-American History
Month Program (Fairfax and Dulles offices). A copy of my remarks is supplied.

February 13, 1999: Remarks, National Black Prosecutors Association, Mid-Year
Conference. A copy of my remarks is supplied.

Febraury 1, 1999: Guest speaker, Lamond-Riggs Citizens Association Meeting.

An outline of my remarks is supplied.

January 22, 1999: Remarks, Meeting with Judges of the Superior Court of the
District of Columbia. A copy of my notes is supplied.

January 21, 1 999: Keynote address. Metropolitan Police Boys and Girls Club
Annual Installation and Awards Banquet. A copy of my remarks is supplied.

January 14, 1999: Remarks, Law Enforcement Briefing on Clinic Terrorism and
Violence. A copy of my remarks and press coverage is supplied.

1999: Keynote address, Jamaican Nationals Association Awards Banquet,
Washington, DC. A copy of my remarks is supplied.

1999: Remarks, United States Attorney’s Office Management Session on Leave
Administration. A copy of my remarks is supplied.

1999: Remarks, Domestic Violence Coordinating Council Workshop, “Sharing of
Power, Responsibility, and Vision between Law Enforcement, the Courts, and the
Community." A copy of my remarks is supplied.

42

1050

1999: Remarks, Meeting with United States Attorney’s New Management Team.
A copy of my remarks is supplied.

1999: Remarks, Meeting with Assistant United States Attorneys in Community
Prosecution Major Crimes Section. I have no notes, transcript or recording. The
address of the U.S. Attorney’s Office is 555 Fourth Street NW, Washington, DC
20001 .

December 10, 199S: Opening remarks, Office of Juvenile Justice and
Delinquency (OJJD) National Conference, “Juvenile Justice: Focus on the
Future.” A copy of my remarks is supplied.

December 8, 1998: Guest speaker, INS Naturalizaton Ceremony, “Celebrating
Our Diversity and the Responsibility of Citizenship.” A copy of my remarks is
supplied.

November 19, 1998: Remarks, United States Attorney’s Office Annual Awards
Ceremony. A copy of my remarks is supplied.

November 18, 1998: Opening remarks, Tri-District Hate Crimes Summit. A copy
of my remarks is supplied.

November 14, 1998: Remarks, Steptoe & Johnson LLP Retreat, Alumni Panel. A
copy of my notes is supplied.

November 10, 1998: Remarks, Mt. Pleasant Advisory National Commission I-E
and Patrol Service Area 410 Community Meeting. A copy of my remarks is
supplied.

November 9, 1998: Guest speaker, George Washington University Law School
Enrichment Program. A copy of my remarks is supplied.

November 5, 1998: Remarks, Pulling America’s Communities Together
(PACT)/ Weed and Seed Quarterly Steering Committee Meeting. A copy of my
remarks is supplied.

October 22, 1998: Remarks, Fifth District Citizens’ Advisory Council Meeting.
Copies of my outline and notes are supplied.

October 19, 1998: Remarks, Tri-District Meeting of United States Attorneys and
Supervisors. An outline of my remarks is supplied.

October 16, 1998: Remarks, Gospel Rescue Ministries/Fulton Hotel Ground-
Breaking Ceremony. A copy of my remarks is supplied.

43

1051

October 15, 1998: Remarks, Annual Law Enforcement Memorial. A copy of my
remarks is supplied.

October 1, 1998: Remarks, Near Northeast Citizens Against Crime and Drugs
Community Meeting. A copy of my remarks is supplied.

September 28, 1 998: Guest speaker, DC Bar Association Luncheon, DC Affairs
Steering Committee. A copy of my remarks is supplied.

September 14, 1998: Remarks, United States Attorney’s Office New Employee
Orientation. A copy of my remarks is supplied.

September 12, 1998: Keynote Address, Department of Justice Association of
Black Attorneys’ (DOJABA) Fifth Annual Career Day. A copy of my remarks is
supplied.

August 22, 1998: Guest speaker, Awards Luncheon, Caribbean American
Intercultural Organization, Inc. A copy of my remarks is supplied.

August 12, 1998: Guest speaker. Drug Education For Youth (DEFY) Graduation
Ceremony. A copy of my remarks is supplied.

July 31, 1998: Investiture remarks during my Oath of Office ceremony to become
United States Attorney for the District of Columbia. A copy of my remarks is
supplied.

July 12, 1998: Graduation message. Recognition of High School Graduates, Faith
Moravian Church. A copy of my remarks is supplied.

July 9, 1998: Guest speaker, Dupont Circle Merchants and Professionals
Association Monthly Business Breakfast. A copy of my remarks is supplied.

July 1, 1998: Remarks, FBI Supervisors’ Meeting. A copy of my notes is
supplied.

June 30, 1998: Guest speaker, Town Hall Meeting with Police Chief Charles
Ramsey, hosted by Delegate Eleanor Holmes Norton, re: cooperative efforts to
fight crime. An outline of my remarks and press coverage is supplied.

June 30, 1 998: Remarks, Meeting with members of Evangelical Lutheran
congregations re: crime and violence. I have no notes, transcript or recording.
The address of the Evangelical Lutheran Church in America is 8765 W. Higgins
Road, Chicago, Illinois 6063 1 .

44

1052

June 29, 1998: Remarks, Meeting with leaders from the Anti-Defamation League
and Jewish Community. I have no notes, transcript or recording. The address of
the League is 605 Third Avenue, New York, New York 101 58.

June 25, 1998: Remarks, Third District Citizens' Advisory Council Meeting. An
outline of my remarks is supplied.

June 23, 1998: Remarks, Presentation at Akin Gump Strauss Hauer & Feld LLP.
An outline of my remarks is supplied.

June 22, 1998: Remarks, United States Attorney’s Office Receptionist Training
Program, A copy of my outline is supplied.

June 20, 1998: Guest speaker, Naylor Dupont Advisory Neighborhood
Commission 7B Town Hall Meeting. A copy of my remarks is supplied.

June 16, 1998: Commencement address, R.H. Terrell Junior High School. A copy
of my remarks is supplied.

June 15, 1998: Remarks, Bloomingdale Civic Association Meeting. A copy of
my remarks is supplied.

June 5, 1998: Remarks, Assistant United States Attorneys Association Annual
Banquet and Awards Presentation. A copy of my remarks is supplied.

June 1, 1998: Opening remarks. Affirmative Civil Enforcement Conference for
Department of Transportation Personnel. A copy of my notes is supplied.

May 29, 1998: Keynote address. Second District Third Annual Awards Banquet,
Metropolitan Police Department. 1 have no notes, transcript or recording. The
address of the MPD is 300 Indiana Avenue NW, Washington, DC 2000] .

May 28, 1998: Remarks, Meeting of Fourth District Community Groups. A copy
of my remarks is supplied.

May 26, 1 998: Guest speaker, Luke C. Moore Academy LEAD Program,

“Careers in Law and Law Enforcement.” An outline of my remarks is supplied.

May 16, 1998: Commencement address. University of the Virgin Islands. A copy
of my remarks is supplied.

May 12, 1998: Guest speaker, Health Care Task Force Meeting, U.S. Attorney’s
Office. A copy of my remarks is supplied.

May 12, 1998: Guest speaker, The William B. Bryant Inn of Court. A copy of my
remarks is supplied.

45

1053

May 12, 1998: Guest Speaker, Meeting with Judges of the District Court of the
District of Columbia. An outline of my remarks is supplied.

May 1, 1998: Remarks, Amidon Elementary School Law Day Celebration. A
copy of my remarks is supplied.

April 23, 1998: Remarks, Patrol Service Area 402 Community Meeting,
Metropolitan Police Department. I have no notes, transcript or recording. The
address of the MPD is 300 Indiana Avenue NW, Washington, DC 20001.

April 23, 1998: Remarks, Fourth Annual Justice for Victims of Crime Awards
Program. A copy of my remarks is supplied.

April 16, 1998: Guest speaker, Washington Bar Association. An outline of my
remarks is supplied.

March 31, 1998: Honoree remarks. National Political Congress of Black Women
DC Chapter, Women’s History Month Honorees. A copy of my remarks is
supplied.

March 24, 1998: Remarks, Patrol Service Area 108 Community Meeting. A copy
of my remarks is supplied.

March 22, 1998: Guest speaker. National Park Service, National Capital Parks-
East, Women’s History Month Program. An outline of my remarks is supplied.

March 4 - 5, 1 998: Guest speaker, Basic Training in Multicultural Housing
Enforcement, (Civil, Criminal, and Adminstrative Remedies). An outline of my
remarks is supplied.

February 27, 1998: Keynote address. United States Attorney’s Office Black
History Month Program. A copy of my remarks is supplied.

February 18, 1998: Remarks, Attorney General’s Hate Crime Point of Contact
Conference. A copy of my remarks is supplied.

February 10, 1998: Panelist, DC Citizens Reform Coalition Community Meeting.
A copy of my remarks and press coverage are supplied.

1998: Remarks, Patrol Service Area 109 Community Meeting, Metropolitan
Police Department. I have no notes, transcript or recording. The address of the
MPD is 300 Indiana Avenue NW, Washington, DC 20001 .

46

1054

1987 - 1998: Lecturer, courses sponsored by the Public Administration Forum,
outlines on the basic principles of federal employment discrimination law for
presentation and distribution. A copy of my 1991 materials is supplied.

February 23, 1997: Keynote address. National Council of Negro Women, Black
Adults of Action Section. A copy of my remarks is supplied.

November 24, 1 996: Guest speaker, St. Thomas Business and Professional
Women’s Annual Appreciation Luncheon, “BPW Women Mean Business.” A
copy of my remarks is supplied.

October 24 - 25, 1 996: Opening and Closing remarks. Affirmative Civil
Enforcement Conference, Department of the Interior Office of the Inspector
General. 1 do not have a copy of my opening remarks, but a copy of my closing
remarks is supplied.

October 22, 1 996: Remarks, First Annual Awards Ceremony and Second
Retrospective, Department of the Interior Office of the Inspector General. A copy
of my remarks is supplied.

September 16, 1996: Opening remarks. Management Conference, Department of
the Interior Office of the Inspector General. A copy of my remarks is supplied.

September 6, 1 996: Award acceptance remarks, Rolex Achievement Award
Ceremony, Intercollegiate Tennis Association. A copy of my remarks is supplied.

July 28, 1996: Guest speaker. Virgin Islands State Federation Business and
Professional Women’s Breakfast, Washington, DC. I have no notes, transcript or
recording. The address of the BPW is P.O. Box 7323, Sunny Isle, St. Croix,
Virgin Islands 00823.

June 14, 1996: Closing remarks, Affirmative Civil Enforcement Conference,
Department of the Interior Office of the Inspector General. An outline of my
remarks is supplied.

April 10, 1996: Remarks, “Reflect on the Past, Ponder the Present, and
Contemplate the Future,” Department of the Interior Office of the Inspector
General One-Year Retrospective. A copy of my remarks is supplied.

March 26, 1996: Panelist, Seminar on expert witnesses sponsored by the
Department of the Interior, Office of the Solicitor, Division of General Law. 1
have no notes, transcript or recording. The address of the DOI is 1 849 C Street
NW, Washington, DC 20240.

March 10, 1996: Guest speaker, Women’s Fellowship Anniversary Service, Faith
Moravian Church. A copy of my remarks is supplied.

47

1055

March 3, 1996: Remarks, Friendship Evangelism, Faith Moravian Church,
Washington. A copy of my remarks is supplied.

February 26, 1996: Closing remarks. Department of the Interior African American
History Month Celebration, “African American Women: Yesterday, Today and
Tomorrow ” A copy of my remarks is supplied.

June 8, 1995: Commencement address, Class of 1995, Ail Saints Cathedral
School, St. Thomas, Virgin Islands. A copy of my remarks is supplied.

March 30, 1995: Remarks, “EEO Trial By Jury” sponsored by the Interagency
Attorney Personnel Group, United Slates Office of Personnel Management. I
have no notes, transcript or recording. The address of the OPM is 1900 E Street
N W, Washington, DC 20415.

1995: Lecturer, “Training Conference for EEO Managers” sponsored by the
Department of the Interior, Bureau of Land Management, Division of Equal
Employment Opportunity. I have no notes, transcript or recording. The address
of the DOI is 1849 C Street NW, Washington, DC 20240.

1993 to 1995: Faculty, College of Trial Advocacy, a one-week program
sponsored by The George Washington University Law School and the District of
Columbia Bar Litigation Section. I have no notes, transcript or recording. The
address of GWU is 2000 H Street NW, Washington, DC 200S2.

May 12, 1994: Keynote address. Department of the Interior Bureau of Mines
Women’s History Month Program. A copy of my remarks is supplied.

May 1, 1994: Keynote address, Swarthmore Spring Athletic Awards Dinner. A
copy of my remarks is supplied.

1994: Lecturer, “Equal Employment Opportunity Summer Training Program”
sponsored by the Department of Defense, Office oflnspector Genera). I have no
notes, transcript or recording. The address of the OIG is 400 Army Navy Drive,
Arlington, Virginia 22202.

1994: Lecturer, “EEO Investigator Training” sponsored by the Department of the
Interior, National Park Service, Equal Opportunity Office. 1 have no notes,
transcript or recording. The address of the NPS is 1849 C Street NW,

Washington, DC 20240.

1994: Panelist, Employment Discrimination Litigation Seminar with panel on
“Survival Under the New Act - Do Juries Really Make a Difference?" sponsored
by the Department of Justice, Office of Legal Education. The address of the DOJ
is 950 Pennsylvania Avenue NW, Washington, DC 20530.

48

1056

November 1, 1992: Guest speaker. Women’s Fellowship Anniversary Service,
Faith Moravian Church. A copy of my remarks is supplied.

1992: As Assistant Chief of the Civil Division in the Office of the United States
Attorney for the District of Columbia, my responsibilities included serving as the
training coordinator for the attorneys in the Division. In this capacity, I
coordinated, directed and participated in two major in-house training programs.
The first program focused on training in each of the substantive areas of law
practiced in the Civil Division, and the second was a jury trial training program. I
have no notes, transcript or recording. The address of the U.S. Attorney’s Office
is Judiciary Center Building, 555 4 11 ' Street NW, Washington, DC 20001 .

1990: Lecturer, “Federal Affirmative Action Conference” sponsored by the Equal
Employment Opportunity Commission, Atlanta District Office. 1 have no notes,
transcript or recording. The address of the EEOC Atlanta District Office is Sam
Nunn Atlanta Federal Center, 100 Alabama Street SW, Suite 4R30. Atlanta,
Georgia 30303.

June 7, 1981: Commencement address, Class of 1 98 1 , All Saints Cathedral
School, St. Thomas, Virgin Islands. A copy of my remarks is supplied.

June 1974: Valedictory address, All Saints Cathedral School, St. Thomas, Virgin
Islands. I have no notes, transcript or recording. The address of the school is
P.O. Box 308, St. Thomas, Virgin Islands 00804.

June 1974: Baccalaureate address. All Saints Cathedral School, St. Thomas,
Virgin Islands. I have no notes, transcript or recording. The address of the school
is P.O. Box 308, St. Thomas, Virgin Islands 00804.

e. List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.

Based on my present recollection and a thorough review of available records, the
following is a list of interviews, although it is possible that the list may not be
exhaustive. I have provided copies of articles, clips, letters of invitation, or notes
reasonably available to me.

Ken Black, Natural Gas Flaring, Venting on Federal Lands and Waters Too
Wasteful, GAO Claims, Targeted News Service, Dec. 8, 2010. Copy supplied.

Press Release, Secretary Salazar Commends OSM Initiatives to Improve
Oversight, U.S. Department of the Interior, Nov. 23, 2010. Copy supplied.

49

1057

Press Release, Secretary Salazar Commends OSM Initiatives to Improve
Oversight of State Surface Coal Mining Programs, U.S. Department of the
Interior, Nov. 1 8, 20 1 0. Copy supplied.

Press Release, Salazar: OCS Safety Board Report a ", Blueprint "for Next Steps on
Interna! Reforms of Offshore Energy Oversight , U.S. Department of the Interior,
Sept. 8, 2010. Copy supplied.

Press Release, Secretary Salazar Launches Onshore Oil and Gas Leasing
Reforms , US Federal News, Jan. 7, 201 0. Copy supplied.

January 6, 2010: Participant, News Teleconference on Onshore Oil & Gas
Leasing Program, U.S. Department of the interior. Transcript supplied.

Press Release, Interior Strengthens Coal Mining Oversight, Announces Initiatives
to Better Protect Streams in Coal Country , U.S. Department of the Interior, Nov.
18,2009. Copy supplied,

October 20, 2009: Remarks, Media Teleconference on U.S. Oil Shale RD&D
Program. 1 have no transcript or recording.

October 8, 2009: Remarks, Press Conference on Recommendations of
Interdisciplinary Team Review of 77 Oil and Gas Parcels in Utah, U.S.
Department of the Interior. Transcript supplied.

Press Release, Office of Surface Mining Reclamation and Enforcement Gives Top
Honors for Abandoned Mine Land Reclamation, U.S. Department of the Interior,
Sept. 28, 2009. Copy supplied.

Joy Blackburn, Virgin Islander Celebrates Confirmation as Undersecretary at
Interior, Daily News (Virgin Islands), Aug. 29, 2009. Copy supplied.

Attila Berry, Nathan Carlile and M&risa McQuilken, Keeping Score; Money,
Clients, and Culture, Legal Times, Nov. 19, 2007. Copy supplied.

Press Release, Crowell & Moring Client AT&T Receives Court Approval for
AT&T-SBC Merger Government Settlement, Crowell & Moring, Apr. 2, 2007.
Copy supplied.

Talk 2 Interview regarding judge selection processes, TV 2 (Virgin Islands), Aug.
2006. I have been unable to obtain a copy.

Clarence Williams, Wainstein Named U.S. Attorney in D.C. , Washington Post,
June 9, 2005. Copy supplied.

50

1058

Lori Montgomery, $100,000 Payment Ends D.C. Slots Bid, Washington Post, Feb.
25, 2005. Copy supplied.

Quote in Diversify, Brochure of Crowell & Moring, 2005. Copy supplied.

Integrity in D C., Washington Post, Oct. 1, 2004. Copy supplied.

Derrill Holly, Appeals Court Bumps Casino Plan Off Ballot, AP Alert, Sept. 28,
2004. Copy supplied.

Serge F. Kovaleski, Board Says Dual System Delayed Vote Count, Washington
Post, Sept 1 6, 2004. Copy supplied.

Matthew Celia, Court to Hear Slots Appeals, Washington Times, Aug. 13, 2004.
Copy supplied.

Heather Greenfield, Elections Board to Determine Cost of Casino Hearings, AP
Alert, Aug. 10, 2004. Copy supplied.

Serge F. Kovaleski and Lori Montgomery, Residents Say Names Were Forged,
Washington Post, July 24, 2004. Copy supplied.

S.A. Miller, Ex-Adviser to Mayor Will Have Role in Slots Issue, Washington
Times, July 21, 2004. Copy supplied.

February 18, 2004: Remarks, Mayor Anthony Williams’ Weekly Media Briefing.

I have been unable to obtain a copy.

Yolanda Woodlee, Mayor Picks Ex-U.S. Attorney for Elections Post, Washington
Post, Feb. 18, 2004. Copy supplied.

Sean Groom, How to Become A Judge, Washington Lawyer, Nov. 2003. Copy
supplied.

Vanessa Blum, Bush Budget Seeks to Ease DOJ's Woes, Legal Times, Feb. 10,
2003. Copy supplied.

Todd Bensman, Many Women 's Groups Cheer Latest U S. Attorney Nominee,
Dallas Morning News, Jan, 1, 2002. Copy supplied.

Molly Morris, Lawyer Says Perception Comment Misperceived, St. Thomas
Source, June 24, 2001. Copy supplied.

Caribbean Perspectives, Howard University, May 23, 2001. T have been unable
to obtain a copy.

51

1059

Stephanie Nazzaro, Departing U.S. Attorney Calls Post “ Greatest Honor of my
Career Associated Press, Apr. 21, 2001. Copy supplied.

Tom Campbell, Bombing Case Coes to City Lawyer, Richmond Times Dispatch,
Apr, 19,2001. Copy supplied.

Neely Tucker, D.C. Case Puts Lawyers on Defensive , Washington Post, Apr. 14,
2001. Copy supplied.

April 11, 2001 : Remarks, Press Conference on policing for the District of
Columbia from federal agencies. Remarks supplied.

Vanessa Blum, Wilma 's New Home , Legal Times, Apr. 9, 2001. Copy supplied.

Jim Keary, Oversight Hearing Brings Call to Limit Officers ’ Court Time ,
Washington Times, Apr. 5, 2001. Copy supplied.

Neely Tucker, 5'* Trial Reject in D.C. Case , Washington Post, Apr. 4, 2001.

Copy supplied

Chitra Ragavan, New Life in an Old Probe, U.S. News & World Report, Apr. 2,
2001. Copy supplied.

Tom Schoenberg, Turning the Tables; Changes in Key Political Posts Have
Altered D. C. s Approach to Criminal Justice Policy, Legal Times, Mar. 26, 2001 .
Copy supplied.

Viveca Novak and Elaine Shannon, Washington Attorney ’s Office Upset as FBI
Takes Away Bombing Case, Time, Mar. 23, 2001 . Copy supplied.

Bill Miller, Lewis Resigning Post as U.S. Attorney for D.C., Washington Post,
Mar. 16, 2001. Copy supplied.

Jim Keary, Lewis Set to Leave as U.S. Attorney, Washington Times, Mar. 1 6,
2001. Copy supplied.

Caribbean Perspectives, Voice of America Radio Program, Mar. 14, 2001. 1 have
been unable to obtain a copy.

Jim Keary, Ramsey Says Time Wasted in Court Makes Overtime Soar,

Washington Times, Mar. 8, 2001. Copy supplied.

Bill Miller, Weston Can be Treated for Trial, Judge Decides , Washington Post,
Mar. 7, 2001 . Copy supplied.

52

1060

Jim Keary, Capitol Killings Suspect Should be Medicated, Judge Says,
Washington Times, Mar. 7, 2001 . Copy supplied.

March 7, 2001: Remarks, Press Conference on Signing of Interagency Agreement
on Child Sexual Abuse Investigation, Prosecution, and Prevention. Remarks
supplied.

Judge Allows Suspect to Return Home , Washington Times, Feb. 28, 2001 . Copy
supplied ,

Neely Tucker and Clarence Williams, Slaying Suspect to Await Trial at Home ,
Washington Post, Feb. 28, 2001 . Copy supplied.

Jim Day, St. Thomas ' Wilma Lewis Receives Dream Keepers Award, Daily News
(Virgin Islands), Feb. 5, 2001. Copy supplied.

Crime & Justice, Washington Post, Dec. 20, 2000. Copy supplied.

Cheryl W. Thompson, IraChinoy and Barbara Vobejda, Unsolved Killings
Plague District , Washington Post, Dec. 3, 2000. Copy supplied.

Bill Miller, D. C. Gang Linked to IS Slayings, Washington Post, Nov. 21, 2000.
Copy supplied.

Jim Keary, Gang’s Murder Charges Total 31, Washington Times, Nov. 21, 2000.
Copy supplied.

Heather Greenfield, Murder Charges Double to 31 Against D.C. Gang,

Associated Press, Nov. 20, 2000. Copy supplied.

November 20, 2000: Press Conference on Kevin Gray Superseding Indictment
(racketeering, murder, and Continuing Criminal Enterprise indictment of drug
gang). Remarks supplied.

Petula Dvorak and Bill Miller, D.C. Police Seek to Build Forensic Lab,
Washington Post, Nov. 16,2000. Copy supplied.

Peter Hermann and Jay Apperson, FBI in N. Y. Arrests Man in Killing of Md.
Trooper , Baltimore Sun, Nov. 14, 2000. Copy supplied.

John Bacon, Manhunt Ends with Arrest in NYC , USA Today, Nov. 1 4, 2000.

Copy supplied.

Jim Keary, Suspect in Cop 's Death Arrested in New York, Washington Times,
Nov. 14, 2000. Copy supplied.

53

1061

Jim Keary and John Drake, Ramsey Seen Selling Crime Investigations Short,
Washington Times, Nov. 7, 2000. Copy supplied.

Yolanda Woodlee, Group Homes’ Debt to D.C.: $6.8 Million, Washington Post,
Oct. 27, 2000. Copy supplied.

Ellen Sorokin, Marina Operator Convicted of Polluting River, Washington
Times, Oct. 1 9, 2000. Copy supplied.

Fireman Found Guilty of Sexual Child Abuse, Washington Times, Oct. 15, 2000.
Copy supplied.

Margie Hyslop, Libertarians Fee! Need for Weed among D. C. Electorate,
Washington Times, Oct. 11,2000. Copy supplied.

October 1 1, 2000: Press Conference, Weed and Seed Fall Campaign
Announcement (community revitalizaton and crime reduction). Remarks
supplied.

Patrick Healy, Student No Longer Charged in Murder, Boston Globe, Oct. 5,
2000. Copy supplied.

Andrew Donohue, Charges Against Classmate Dropped in Beating Death of
Gallaudet Freshman, Star Tribune, Oct. 5, 2000. Copy supplied.

Bill Miller, Apartment Owners Agree to Increase Security, Washington Post, Oct.
5,2000. Copy supplied.

Neely Tucker and Arthur Santana, Gallaudet Slaying Case is Dropped,
Washington Post, Oct.5, 2000. Copy supplied.

Press Release, U S. Settles with D C Landlords Who Did Not Warn Tenants of
Lead Paint Risks, U S. Department of Justice, Oct. 4, 2000. Copy supplied.

October 4, 2000: Press Conference, Cooperation Agreement between
Metropolitan Police Department and Amtrak Police Department (under Police
Coordination Act of 1 997). Remarks supplied.

October 4, 2000: Press Conference, Sexual Assault Nurse Examiner Program
(SANE) (collaboration and enhancement of medical and law enforcement efforts).
Remarks supplied.

September 28, 2000: Press Conference, “R Street” Settlement (requiring
abatement of drug-related nuisance conditions by property owners), Washington,
DC, Sept. 28, 2000. Remarks supplied.

54

1062

Man Guilty in Murder of Girlfriend 's Parents , Washington Times, Sept. 26, 2000.
Copy supplied.

September 21, 2000: Press Conference, North Capitol Corridor Business
Association District, Washington, DC. Remarks supplied.

Arthur Santana, U.S. Attorney Doesn 7 See a Need for DC. Night Court ,
Washington Post, Sept. 2, 2000. Copy supplied.

Arthur Santana, Order to Free Accused D.C. Killer Sparks Outcry, Washington
Post, Sept. 1, 2000. Copy supplied.

Man Pleads Guilty on Weapons Charge, Washington Times, Aug. 24, 2000.

Copy supplied.

Rob Kampia, Prohibition Lives; It is Killing D.C. Residents, Too, Washington
Times, Aug. 21, 2000. Copy supplied.

John Drake, Prosecutors Drop Murder Charge in Slaying of Hotel Worker,
Washington Times, Aug. 1 8, 2000. Copy supplied.

Tom Scheonberg, Mayor Eyes New Role on Crime, Legal Times, Aug. 14, 2000.
Copy supplied.

Jim Keary, Court Dockets Keep Cops Off Streets, Washington Times, Aug. 14,
2000. Copy supplied.

John Drake, Major Drug Ring Put Out of Action, Washington Times, Aug. 0,
2000. Copy supplied.

Stacey Pamela Patton, 25 Arrested in Probe of District Drug Ring, Washington
Post, Aug. 9, 2000. Copy supplied.

Derrill Holly, Dozens Arrested in Crackdown on Alleged Drug Ring, Associated
Press, Aug. 8, 2000. Copy supplied.

August 8, 2000: Press Conference, Langston Terrance Takedown (narcotics
(heroin) trafficking indictment). Remarks supplied.

Greg Bishop, Mediation Program Established <o Ease Overload in Courts,
Washington Times, Aug, 1,2000. Copy supplied.

July 31, 2000: Press Conference, Kick-Off of Community Misdemeanor
Mediation Service (mediation of certain misdemanor cases). Remarks supplied.

55

1063

Bill Miller, Owners of Troubled Properties Targeted, Washington Post, July 27,
2000. Copy supplied.

Jim Keary, Former Superintendent Admits Cemetery Theft, Washington Times,
July 2 1 , 2000. Copy supplied.

Jason Cherkis, False Witness, Washington City Paper, July 21 , 2000. Copy
supplied.

Allan Lengel, District Toughens Marijuana Penalties, Washington Post, July 12,
2000. Copy supplied.

Tom Schoenberg, Dodging a Bullet, Legal Times, July 3, 2000. Copy supplied.

Courtland Milloy, Surrender Won 7 Slop the Violence, Washington Post, June 1 4,
2000. Copy supplied.

Jim Keary, D. C. Contractors Accused of Bribes, Washington Times, June 14,
2000. Copy supplied.

No Charges Filed in Georgetown Death, Washington Times, June 3, 2000. Copy
supplied.

Trade Bill for Poorer Nations Goes to China , St. Petersburg Times, May 12,
2000. Copy supplied.

Neely Tucker, Views Invited on Sentencing in D.C., Washington Post, May 1 1 ,
2000. Copy supplied.

May 9, 2000: U.S. Attorney’s Office Press Conference on arrest of drug gang
leader. Press clips on the conference are as follows:

Kevin Gray, Drug Lord, Washington Times, May 1 5, 2000. Copy supplied.

Bill Miller, D.C. Drug Lord Had 15 Killed, U S. Charges, Washington Post,
May 10,2000, Copy supplied.

John Drake, Leader of Violent Drug Gang Charged in 15 Murders,
Washington Times, May 10, 2000. Copy supplied.

Derrill Holly, Prosecutor Calls Alleged Drug Gang Most Violent Ever,
Associated Press, May 9, 2000. Copy supplied.

Carrie Johnson, Judge Gives Up Troubled Case, Legal Times, May 1 , 2000.

Copy supplied.

56

1064

April 25, 2000: Press Conference, Guilty Plea and Sentencing of Carl Cooper
(triple murder of Starbucks employees and other violent offenses). Remarks
supplied.

Government Settles EEO Suit with 508 Mil., Federal EEO Advisor, Apr. 13, 2000.
Copy supplied,

April 7, 2000: Press Conference, Kick-Off of Senior Medicare Patrol Project of
the District of Columbia (medicare fraud). Remarks supplied.

Five Charged in Drug Operation, Washington Times, Apr. 6, 2000. Copy
supplied.

From Wire Dispatches and Staff Reports: U.S. Attorney Files Suit Against
Complex Owner, Washington Times, Mar. 3 1 , 2000. Copy supplied.

Jack Lucentini, President, Firm Await Penalties for Exporting Without a License,
Journal of Commerce, Mar. 29, 2000. Copy supplied.

Jim Keary, Appeals Court Tells Judge to Reconsider , Washington Times, Mar.

25, 2000. Copy supplied.

Bill Miller, Court Won 7 Require Medication for Weston, Washington Post, Mar.
25, 2000. Copy supplied.

Jerry Seper, Federal Agencies Settle Sex-Discrimination Suit for S508 Million,
Washington Times, Mar. 24, 2000. Copy supplied.

Brigitte Greenberg, Women Win S508 Million in Sex Discrimination Settlement,
Charleston Gazette, Mar. 23, 2000. Copy supplied.

Brigitte Greenberg, Sex Bias Award Exceeds $500M, Albany Times Union, Mar.
23, 2000. Copy supplied.

US Agrees to Pay Pounds 317m to End 22-Year Sex Discrimination Case,
Birmingham Post (UK), Mar. 23, 2000. Copy supplied.

A Sheriff Named Wilma, City Paper (Washington’s Free Weekly), Mar. 10-16,
2000. Copy supplied.

Press Release, Virginia Man Sentenced for Violation of the "No Electronic Theft "
(NET) Act for Unlawful Distribution of Software on the Internet, U.S. Department
of Justice, Mar. 3, 2000. Copy supplied.

Rristan Trugman, $10, 000 Reward Offered to Wrap Up Old Slayings, Washington
Times, Feb. 24, 2000. Copy supplied.

57

1065

Kevin Diaz, Double Exposure , Washington City Paper, Feb, 1 1 , 2000. Copy
supplied.

Press Release, Virginia Man Pleads Guilty to Charges Filed Under the "No
Electronic Theft " (NET) Act for Unlawful Distribution of Software on the
Internet, U.S. Department of Justice, Dec. 22, 1999. Copy supplied.

David B, Ottaway and Barbara Vobejda, Weapons' Deadly Journey, Washington
Post, Dec. 12, 1999. Copy supplied.

Avram Goldstein and Katherine Boo, D.C. Vows Review of Deaths in Homes,
Washington Post, Dec. 6, 1999. Copy supplied.

David Scott, Blue Choice Agrees to Pay S6 Million in Settlement, Associated
Press, Dec. 1 , 1 999. Copy supplied.

November 21, 1 999: Viewpoint, NBC-4 re: Operation Ceasefire (gun violence
reduction initiative). Video supplied.

Barry to Ask Reno to Probe Sting Plan, Washington Times, Nov. 20, 1 999. Copy
supplied.

Bill Miller and Vanessa Williams, D.C. ‘s Barry Remained Target of Law
Enforcement Until 1998, Houston Chronicle, Nov. 20, 1999. Copy supplied.

Bill Miller and Vanessa Williams, FBI Planned Another Barry Sting, Washington
Post, Nov. 19, 1999. Copy supplied.

November 15, 1999: Press Conference, Operation Ceasefire. Remarks supplied
and additional present coverage is listed below:

Ed Laiscell, District Gun Control Effort Expanded, Washington Informer,
Nov. 24, 1999. Copy supplied.

November 4, 1999: Press Conference, Ceasefire Press Meeting (public
information campaign). Remarks supplied.

October 19, 1999: Press Conference, Indictment of McDonnell Douglas
Corporation and China National Aero Technology Import and Export Corporation
(violation of export laws and false representations). Remarks supplied and
additional press coverage is listed below:

Philip Dine, McDonnell is Indicted Over 1994 Sales to China, St. Louis Post-
Dispatch, Oct. 20, 1999. Copy supplied.

58

1066

Press Release, Mazda Motor of America to Settle Clean Air Case , U.S.
Department of Justice, Sept. 30, 1999. Copy supplied.

September 9, 1999: Press Conference, Open House of Fulton House to the Gospel
Mission. Remarks supplied.

Public Interest with Kojo Nnamdi, WAMU 88.5 FM, American University Radio,
Sept. 2, 1999. Audio recording available at
httn://thekoionnamdishow.org/shows/l 999-09-02 .

An Afternoon in D C., Harvard Law Bulletin, Fall 1999. Copy supplied.

Paul Flatin, Asian-Americans Protest Hate Crimes in U.S . , Japan Economic
Newswire, Aug. 26, 1999. Copy supplied.

Crime & Justice , Washington Post, Aug. 20, 1 999. Copy supplied.

Sandy Ross, Washington Lauds Lewis; Lawyers ' Magazine Focuses on St.

Thomas Native 's Accomplishments, Daily News (Virgin Islands), Aug. 5, 1 999.
Copy supplied.

Jim Keary, Starbucks Suspect is Indicted in Crime Ring, Washington Times, Aug.
5, 1999. Copy supplied.

Derrill Holly, Accused Starbucks Slayer Indicted, Associated Press, Aug. 4, 1 999.
Copy supplied.

Cheryl W. Thompson, D. C. to Expand Community Prosecution, Washington Post,
Aug. 4, 1999. Copy supplied.

Martin Schneider, U.S. Attorney’s Program Forges Ties to Community,
Washington Times, Aug. 4, 1999. Copy supplied.

August 3, 1999: Press Conference, United States Attorney’s Office Kick-Off of
City-Wide Community Prosecution. Remarks supplied.

Tom Schoenberg, House Covets D.C. Victim Fund, Legal Times, Aug. 2, 1999.
Copy supplied.

Would-Be Reagan Assassin Cleared for Daytrips, CNN.com, July 26, 1999.

Copy supplied.

Jim Keary, Poor Court Scheduling Drains Funds, Washington Times, July 20,

1 999. Copy supplied.

59

1067

July 15, 1999: Press Conference, Lead Based Paint cases (proposed consent
decrees). Remarks supplied.

Press Release, US. Sues Toyota for Clean Air Act Violations, U.S. Department of
Justice, July 12, 1999. Copy supplied.

Metro Talk , WBIG-FM, July 11, 1999. I have been unable to obtain a copy.

Tom Schoenberg, Making Crime the Focus, Legal Times, July 5, 1 999. Copy
supplied.

Fox 5 Interview re Halfway Homes and Conditions of Release Enforcement
Initiative, June 28, 1999. I have been unable to obtain a copy.

Channel 7 Interview re: Conditions of Release Enforcement Initiative, June 28,

1 999. I have been unable to obtain a copy.

Interview with Time Magazine re: Community Prosecution Initiative, June 22,
1999, Notes supplied.

Tom Schoenberg, Putting a Lock on " Revolving Door " Justice , Legal Times,
June21, 1999. Copy supplied.

Ronald J. Hansen, District ‘s Juvenile Curfew Reinstated , Washington Times, June
19, 1999. Copy supplied.

Peter Slevin, Court Upholds District Curfew , Washington Post, June 19, 1999.
Copy supplied.

Hey! Did You Hear, Diesel Progress, June 1, 1 999. Copy supplied.

A Conversation with Wilma A. Lewis, Washington Lawyer, May/June 1999.

Copy supplied.

Viewpoint, NBC-4, May 27, 1 999. 1 have been unable to obtain a copy.

May 22, 1999: Press Conference, Refuge of Hope, P Street Properties Renovation
Project. Remarks supplied.

Briefly This Week, Medicine & Health, May 1 7, 1 999. Copy supplied.

Bill Miller, Former U.S. Clerk Faces Drug Charges, Washington Post, May 8,
1999. Copy supplied.

Carrie Johnson, Gang Convictions Attacked, Legal Times, May 3, 1 999. Copy
supplied.

60

1068

Ronald J. Hansen, Court Action Lets St. Elizabeth Decide if Hinckley Allowed
Leave , Washington Times, Apr. 28, 1999. Copy supplied.

Bill Miller, Judges Lei Stand Hinckley Ruling, Washington Post, Apr. 28, 1999.
Copy supplied.

Will Lester, Appeals Court Won 't Block Supervised Day Trips by Hinckley, AP
Online, Apr. 27, 1999. Copy supplied.

Fox 5 Television Interview re: Marijuana Laws, Apr. 24, 1999. ! have been
unable to obtain a copy.

Interview by Michael Hays, Council for Court Excellence “A Conversation With
Wilma Lewis,” Apr. 22, 1999. Copy supplied.

April 9, 1999: Press Conference, D.C. Tax Fraud Scheme (guilty pleas and
charges). Remarks supplied,

Harry Jaffe, Going After Shorty, Washingtonian, Apr. 1999. Copy supplied.

March 26, 1999: Press Conference, Dedication of Mobile Community Outreach
Police Substation (MCOPS), Remarks supplied.

Interview with Washington Area Broadcasters Association, Mar. 16, 1999. I have
no notes, transcript or recording.

Jim Keary, Starbucks Suspect to Face D.C. Trial First, Washington Times, Mar.
12, 1999. Copy supplied.

Ronald J. Hansen, Starbucks Suspect to Face D.C. Charges Before PG Case,
Washington Times, Mar. 7, 1999. Copy supplied.

Ellen Gamerman, D.C. Man Charged in Starbucks Killings, Baltimore Sun, Mar.
6,1999. Copy supplied.

Jim Keary and Kristan Trugman, Cooper Charged with Starbucks Slayings,
Washington Times, Mar. 6, 1999. Copy supplied.

Jim Keary, Police Begin Outreach, Washington Times, Feb. 27, 1999. Copy
supplied.

February 24, 1999: Press Conference, AARP/DOJ/HHS Medicare Fraud Fighters
Rally. Remarks supplied.

61

1069

Press Release, Chinese National Arrested and Charged with Illegal Shipment of
Riot Control Vehicle , M2 Presswire, Feb. 18, 1999. Copy supplied.

Kalpana Srinivasan, Chinese Man Arrested for Exporting Pepper Gas Truck, AP
Online, Feb. 12, 1999. Copy supplied.

Sam Skolnik, Taking It to the Streets, Legal Times, Feb. 8, 1999. Copy supplied.

Cheryl W. Thompson, Hundreds Escaping from Halfway Houses in District,
Washington Post, Jan. 24, 1999. Copy supplied.

Crime and Justice, Washington Post, Jan. 22, 1999. Copy supplied.

Eric Lichtblau, Court Clears Hinckley for Short Trips, Chicago Sun-Times, Jan.
16, 1999. Copy supplied.

Ronald J. Hansen, Reagan s Shooter OK 'd for Outings, Washington Times, Jan.
16,1999. Copy supplied.

Anne Gearan, Attempted Reagan Assassin Can Take Day Trips from Hospital,
Associated Press, Jan. 15, 1999. Copy supplied.

January 14, 1999: Press Conference, Indictment and arrests of Southeast Drug
Organization (rackeetering and murder). Related press coverage is listed below:

Jim Keary, Drug Raid Nabs 22, Washington Times, Jan. 1 5, 1 999. Copy
supplied.

Bill Miller, 14 Indicted in Probe of Drug-Related Gang Warfare, Washington
Post, Jan. 15, 1999. Copy supplied.

Dentil Holly, Washington Gang Leaders Nabbed in Early Morning Raids,
Associated Press, Jan. 14, 1 999. Copy supplied.

Press Release, Members of Southeast Drug Organization Indicted and
Arrested on Federal Racketeering and Murder Charges , U.S. Attorney’s
Office, Jan. 14, 1999. Copy supplied.

Crime & Justice, Washington Post, Jan. 8, 1 999. Copy supplied.

Bill Miller, Ex-District Employee Admits Role in Kickback Scheme, Washington
Post, Dec. 19, 1998. Copy supplied.

Nancy Zuckerbrod, Federal Officials Crack Alleged Green Card Ring, Associated
Press, Dec. 16, 1998. Copy supplied.

62

1070

San Horwitz and Jeff Leen, Police Step Up Firearms Training , Washington Post,
Dec. 16, 1998. Copy supplied.

December 15, 1998: Press Conference, Indictment in INS “Operation South Side”
(counterfeit green card manufacturing ring). Remarks supplied and related press
coverage is listed below:

Bill Miller, 5 Indicted in Alleged Fake ID Factory , Washington Post, Dec. 16,
1998. Copy supplied.

Maria Elena Fernandez, Eleven Are Indicted in International Heroin-Smuggling
Ring, Washington Post, Dec. 4, 1998. Copy supplied.

December 2, 1998: Press Conference, Indictment in INS “Operation South Side”
(counterfeit green card manufacturing ring). Remarks supplied.

Mike Osenga, Diesel Industry Confronts the Emission Settlement , Diesel
Progress, Dec. 1, 1998. Copy supplied.

Nancy Zuckerbrod, Police in the District Said to he Targets, Associated Press,
Nov. 19,1998. Copy supplied.

Carrie Johnson, “Wholesale" Shake-Up at Prosecutor 's Shop, Legal Times, Nov.
2, 1 998. Copy supplied.

Bill Miller, Update on the News, Washington Post, Oct. 26, 1998. Copy supplied.

October 22, 1998: Remarks, Press Conference on the Clean Air Act Settlement
with manufacturers of heavy-duty diesel engines. Transcript supplied.

Sally Brady, ‘Murder Hotel’ to Become Drug-Healing Site, Washington Times,
Oct. 17, 1998. Copy supplied.

September 22, 1998: Remarks, Press Conference on indictments of 10 Southwest
D.C. gang members. Remarks supplied and related press coverage listed below:

Maria Elena Fernandez and Bill Miller, 1 0 Members of SW Gang Indicted on
Drug Counts, Washington Post, Sept. 23, 1 998. Copy supplied.

Jim Keary, Drug Buyers from Suburbs Risk Crackdown in District,
Washington Times, Sept. 23, 1998. Copy supplied.

Jim Keary, Southwest Gang Members Indicted, Washington Times, Sept. 23,
1998. Copy supplied.

63

1071

Carrie Johnson, Shuffling D.C. Prosecutors, Legal Times, Sept. 7, 1 998. Copy
supplied.

Peter Slevin, D.C. Liquor Shop Owner Free Until Trial in Beating of Teen,
Washington Post, Sept. 5, 1998. Copy supplied.

Bill Miller, New U.S. Attorney Lewis Lays Down the Law , Washington Post, Sept.
3, 1 998. Copy supplied.

EPA, Engine Makers Debate Real-World Emissions, Truck News, Aug. 1998.
Copy supplied.

John Diamond, Ex-CIA Operative Pleads Guilty , Associated Press, July 28, 1998.
Copy supplied.

Walter Pincus and Bill Miller, Ex-CIA Operative Pleads Guilty to Blackmail
Attempt at Agency , Washington Post, July 28, 1 998. Copy supplied.

Edward Fitzpatrick, Groat Admits CIA Scam, Albany Times Union, July 28, 1998.
Copy supplied.

Bill Gertz, Fired CIA Agent 's Plea Reduces Charges, Protects Secrets,
Washington Times, July 28, 1998. Copy supplied.

Jamie Dettmer, Capital Shame, UPI Insight, July 6, 1998. Copy supplied.

July 1 , 1 998: Press Conference, Sentencing in U.S. v. Riley (murder of two
brothers). Remarks supplied and related press coverage below:

Jim Keaty, Mother of Two Slain Sons Sees Three Killers Get Long Sentences,
Washington Times, July 2, 1998. Copy supplied.

Carrie Johnson, Ending the Budget Impasse?, Legal Times, June 22, 1998. Copy
supplied.

Bill Miller, Ending a Very Long Watch, Washington Post, June 1 8, 1998. Copy
supplied.

Dan Shope, Feds Sue Mack Over Emissions, Morning Call, June 1 7, 1 998. Copy
supplied.

Press Release, Justice Department Sues Mack Truck, Inc. Under Clean Air Act,
U.S. Department of Justice, June 16, 1998. Copy supplied.

June 8, 1 998: Remarks, Press Conference on automotive industry lawsuits.
Transcript supplied.

64

1072

Press Release, American Honda Agrees to S267 Million Settlement to Resolve
CleanAirAcl Violations, U.S. Department of Justice, June 8, 1998. Copy
supplied.

Jim Keary, 20 Gang Members Busted for Drugs, Washington Times, June 4,

1998. Copy supplied.

Press Release, Indictment and Arrest of members of “7th and O Street Crew”
(narcotics trafficking), U.S. Attorney’s Office, June 3, 1998. Copy supplied.

Press Release, BFI Pleads Guilty to Illegal Wastewater Discharges, U.S.
Department of Justice, June 1, 1998. Copy supplied.

May 21, 1998: Press Conference, Sentencing in U.S. v. Jackson f carjacking V
Remarks supplied.

April 23, 1998: Press Conference, Sentencing of Marthell Dean (murder of police
officer). Remarks supplied.

Janelle Carter, Ten Motor Vehicle Inspectors Charged with Taking Bribes,
Associated Press, Apr. 14, 1998. Copy supplied.

Douglas Waller and Elaine Shannon, The Strange Case of the Spy in the
Winnebago, Time, Apr. 13, 1998. Copy supplied.

April 3, 1998: Remarks, Press Conference on arrest of ex-CIA agent on espionage
charges. Transcript supplied.

April 2, 1998: Remarks, Press Conference to honor service of interim Police
Chief Sonya T. Proctor. I have no notes, transcript or recording. Press coverage
of the event is listed below:

Francesca C. Simon, Proctor s Last Moments as Chief Uncomfortable,
Washington Times, Apr. 3, 1998. Copy supplied.

Bill Miller, 23 Are Arrested in Probe of Alleged SW Drug Gang, Washington
Post, Mar. 6, 1 998. Copy supplied.

Jim Keary, Harlan Leans to Leaving Control Board in June, Washington Times,
Mar. 5, 1998. Copy supplied.

Jim Keary, Soulsby Pal Pleads Guilty, to Testify Against Ex-Chief Washington
Times, Jan. 27, 1998. Copy supplied.

65

1073

Paul Butler, An Underused Means to Mend D.C., Legal Times, Jan. 19, 1998.
Copy supplied.

Ronald J. Hansen, New U.S. Attorney Touts Collaborative Effort Washington
Times, Jan. 17, 1998. Copy supplied.

Bill Miller and Toni Locy, Rooting Out Public Corruption a Top Priority for New
U.S. Attorney , Washington Post, Jan. 15, 1998. Copy supplied.

Fox 5 Television Interview with the new United States Attorney for the District of
Columbia, Jan, 13, 1998. I have been unable to obtain a copy.

Jan. 1998 - Apr. 2001 : During my tenure as U.S. Attorney, the U.S. Attorney’s
Office regularly issued press releases regarding significant events in cases
handled by the office. Many of the press releases included quotes from me, as the
United States Attorney. Except for those included in this response, I do not have
copies of the press releases reasonably available. The address of the U.S.
Attorney’s Office is Judiciary Center Building, 555 4th Street NW, Washington,
DC 20001.

Stephen Barr, $ 330,000 Outhouse? Hill Critics View It as a Matter of Waste,
Washington Post, Oct. 30, 1997. Copy supplied.

Saundra Torry, Candidate Named to Succeed Holder , Washington Post, Aug. 1 5,
1997. Copy supplied.

Jim Keary and Ronald J. Hansen, Norton Backs IG as U.S. Attorney , Washington
Times, Aug. 15,1997. Copy supplied.

August 14, 1997: Press Conference, Announcement by Congresswoman Eleanor
Holmes Norton of her decision to recommend Wilma Lewis to President Clinton
as the nominee for United States Attorney for the District of Columbia. Remarks
supplied.

Member Spotlight, VIA (Virgin Islands Association) News, June 1 997. Copy
supplied.

John Brinkley, Feds Investigate National Park Service, Rocky Mountain News,
Oct. 21, 1995. Copy supplied.

Norma Levin, Appointment as U.S. Inspector General Brings Acclaim to Wilma
Lewis, PRIDE (The Monthly Virgin Islands Newsmagazine), Aug. 1995. Copy
supplied.

Hal Hatfield, Beautiful Day for VI. 's Wilma Lewis in New Job, Daily News
(Virgin Islands), Apr. 8, 1995. Copy supplied.

66

1074

13. Judicial Office : State (chronologically) any judicial offices you have held, including
positions as an administrative law judge, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.

I have not held any judicial office.

a. Approximately how many cases have you presided over that have gone to verdict
orjudgment?

i. Of these, approximately what percent were:

jury trials:

%

bench trials:

%

civil proceedings:

%

criminal proceedings:

%

b. Provide citations for all opinions you have written, including concurrences and
dissents.

c. Fot each of the 10 most significant cases over which you presided, provide: (l) a
capsule summary of the nature the case; (2) the outcome of the case; (3) the name
and contact information for counsel who had a significant role in the trial of the
case; and (3) the citation of the case (if reported) or the docket number and a copy
of the opinion orjudgment (if not reported).

d. For each ofthe 10 most significant opinions you have written, provide: (1)
citations for those decisions that were published; (2) a copy of those decisions that
were not published; and (3) the names and contact information for the attorneys
who played a significant role in the case.

e. Provide a list of all cases in which certiorari was requested or granted.

f. Provide a brief summary of and citations for all of your opinions where your
decisions were reversed by a reviewing court or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings. If
any of the opinions listed were not officially reported, provide copies of the
opinions.

g. Provide a description of the number and percentage of your decisions in which
you issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored.

h. Provide citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, provide copies ofthe opinions.

67

1075

i. Provide citations to all cases in which you sat by designation on a federal court of
appeals, including a brief summary of any opinions you authored, whether
majority, dissenting, or concurring, and any dissenting opinions you joined.

14. Recusal: If you are or have been a judge, identify the basis by which you have assessed
the necessity or propriety of recusal (If your court employs an "automatic” recusal system
by which you may be recused without your Icnowledge, please include a general
description of that system.) Provide a list of any cases, motions or matters that have
come before you in which a litigant or party has requested that you recuse yourself due to
an asserted conflict of interest or in which you have recused yourself sua sponte. Identify
each such case, and for each provide the following information:

a. whether your recusal was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any other person or interested party; or if you
recused yourself sua sponte;

b. a brief description of the asserted conflict of interest or other ground for recusal;

c. the procedure you followed in determining whether or not to recuse yourself;

d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any
other ground for recusal.

I have not served as a judge.

15. Public Office. Political Activities and Affiliations :

a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, state chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.

Inspector General, United States Department of the Interior (1995 — 1998) -
Nominated by President William Clinton, confirmed by the United States Senate

United States Attorney for the District of Columbia (1998 - 2001) - Nominated
by President William Clinton, confirmed by the United States Senate

District of Columbia Board of Elections and Ethics (2004 - 2007) - Nominated
by the Mayor of the District of Columbia, Anthony Williams, confirmed by the
Council of the District of Columbia, designated as Chairman of the Board by
Mayor Anthony Williams

68

1076

Assistant Secretary for Land and Minerals Management, United States
Department of the Interior (2009 - Present) - Nominated by President Barack
Obama, confirmed by the United States Senate

I have never sought elective office, and I have not had any unsuccessful
nominations for appointed office.

b. List all memberships and offices held in and services rendered, whether

compensated or not, to any political party or election committee. ]f you have ever
held a position or played a role in a political campaign, identify the particulars of
the campaign, including the candidate, dates of the campaign, your title and
responsibilities.

I have never held any paid or unpaid position in, or rendered any services to, a
political party or election committee, nor have 1 held a position or played a role in
apolitical campaign.

16. Legal Career: Answer each part separately.

a. Describe chronologically your law practice and legal experience after graduation
from law school including:

i. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you wore a clerk;

1 did not serve as a clerk to a judge.

ii. whether you practiced alone, and if so, the addresses and dates;

I have not practiced alone.

iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.

1981 - 1986

Steptoe & Johnson LLP

1330 Connecticut Avenue, NW

Washington, DC 20036

Associate

1986-1993

Office of the United States Attorney for the District of Columbia
Judiciary Center Building
555 Fourth Street, NW
Washington, DC 20001

69

1077

Assistant United States Attorney (1986 - 1993)

Assistant Chief, Civil Division (1989 - 1993)

Deputy Chief, Civil Division (1 993)

1993-1995

United States Department of the Interior
1849 C Street, NW
Washington, DC 20240
Associate Solicitor, Division of General Law

1995-1998

United States Department of the Interior
1849 C Street, NW
Washington, DC 20240
Inspector General

1998-2001

Office of the United States Attorney for the District of Columbia

Judiciary Center Building

555 Fourth Street, NW

Washington, DC 2000 1

United States Attorney

2001-2007
Crowell & Moring LL?

1001 Pennsylvania Avenue, NW
Washington, DC 20004
Partner

2007 - 2008

Federal Home Loan Mortgage Corporation (“Freddie Mac”)

8200 Jones Branch Drive
McLean, Virginia 22102

Managing Associate General Counsel (Litigation)

2009 - Present

United States Department of the Interior
1 849 C Street, NW
Washington, DC 20240
Senior Advisor to the Secretary (2009)

Assistant Secretary, Land and Minerals Management (2009 - Present)

iv. whether you served as a mediator or arbitrator in alternative dispute
resolution proceedings and, if so, a description of the 10 most significant
matters with which you were involved in that capacity.

70

1078

I have not served as a mediator or arbitrator,
b. Describe:

i. the general character of your law practice and indicate by date when its
character has changed over the years.

From 1981 to 1986, 1 was an Associate in the General Litigation Group
with Steptoe & Johnson LLP, practicing in the areas of insurance,
contract, employment discrimination and tort law. My primary
responsibilities included legal research; discovery; drafting of pleadings,
motions, memoranda and briefs; and the management of small insurance
cases.

As an Assistant United States Attorney in the District of Columbia from
1986 to 1989, 1 was engaged in a very active civil litigation practice,
serving as lead counsel in a wide variety of civil cases against the United
States, its agencies and officials in the United States District Court for the
District of Columbia and the United States Court of Appeals for the
District of Columbia Circuit. The cases included equal employment
opportunity (individual and class actions); tort; government contracts;
constitutional claims; claims against Federal officials in their individual
capacities; and matters brought under the Administrative Procedure Act,
Freedom of Information Act, and Privacy Act. My responsibilities
included regular appearances in court and the lead role in all aspects of
civil litigation at both the Federal trial and appellate levels.

From 1 989 to 1 993, while serving in the supervisory positions of Assistant
Chief and Deputy Chief of the Civil Division of the United States
Attorney’s Office, I was part of the senior staff responsible for supervision
of the District Court practice and general management of the Division. I
was also responsible for the in-house training program for the attorneys in
the Division, and the review of personnel matters that arose within the
United States Attorney’s Office. Court appearances occurred on an
occasional basis - principally in connection with significant matters,
including, for example, serving as lead counsel in the first jury trial against
the Federal Government in the District of Columbia under the Civil Rights
Act of 1991, which I co-tried successfully in 1993 with a more junior
Assistant United States Attorney.

As the Associate Solicitor for the Division of General Law with the United
States Department of the Interior from 1993 to 1995, the focus of my
practice was on the management and supervision of a division responsible
for legal work in a variety of areas, including equal opportunity
compliance, personnel matters, procurement, torts. Freedom of
Information Act and Privacy Act appeals, Federal Advisory Committee

71

1079

Act matters, ethics, general legal services, and legal work involving the
territories. 1 also rendered legal advice to senior officials within the
Department on matters within the Division’s jurisdiction. In addition to
these responsibilities, I performed several special assignments, including:
(1) serving as Acting Deputy Solicitor for 3-1/2 months and as Acting
Solicitor on several occasions in the absence of the Solicitor; (2) assisting
the United States Special Representative for Guam Commonwealth
Negotiations (the Department’s then Deputy Assistant Secretary for
Policy, Management and Budget) with legal and other matters related to
those negotiations, which involved extensive discussions with officials
from other Federal agencies and Guam; and (3) working on legal matters
arising under the Hawaiian Homes Commission Act, which involved
issues regarding the status and entitlement of Native Hawaiians.

As the Inspector General for the Department of the Interior from 1 995 to

1 998. 1 managed and supervised the office responsible for: (1 ) conducting
independent and objective audits and investigations (criminal, civil and
administrative) designed to promote economy, efficiency, and
effectiveness and to prevent and detect fraud, waste and mismanagement
in the Department’s programs and operations; (2) performing the function
of government comptroller, under the Insular Areas Act of 1982, in Guam,
American Samoa, the Virgin Islands and the Commonwealth of the
Northern Mariana Islands through audits of federal and local revenues,
receipts, expenditures and property; and (3) performing audit
responsibilities in the Federated States of Micronesia, the Republic of the
Marshall Islands, and the Republic of Palau pursuant to the Compact of
Free Association Act of 1985. Matters investigated included allegations
of fraud in a variety of contexts, false statements, theft or embezzlement,
corruption, conflict of interest, and attendant crimes, e.g., mail fraud, wire
fraud, and conspiracy. As Inspector General, I became involved with legal
questions and issues, as necessary, in consultation with the General
Counsel and his staff. Such issues typically involved the interpretation of
laws, rules, and regulations that arose in the conduct of audits and
investigations.

As the United States Attorney for the District of Columbia from 1998 to

2001 . 1 oversaw, managed and supervised the largest United States
Attorney’s Office in the country with over 350 attorneys and the unique
responsibility of serving as both federal and local prosecutor. The Office
bandies a broad range of: (1 ) federal defensive civil matters including
equal employment opportunity, government contracts, constitutional
claims, lawsuits under the Federal Tort Claims Act, matters under the
Freedom of Information Act and Privacy Act, challenges to agency action
under the Administrative Procedure Act, and lawsuits against government
officials in their individual capacities, as well as affirmative civil
enforcement matters; (2) federal criminal matters, including public

72

1080

corruption and government fraud, major narcotics trafficking, economic
crimes, gang prosecutions, civil rights violations, and transnational
matters; and (3) local crimes committed by adults in the District of
Columbia ranging from misdemeanors to major felonies. As necessary, I
became personally involved in some of the more significant cases handled
by the Office, including by reviewing and analyzing documents and
briefing materials; evaluating evidence; participating in meetings,
briefings and other presentations with the Attorney General and other
Department of Justice attorneys, Assistant United States Attorneys, federal
and local law enforcement officials, agency attorneys, and criminal
defense counsel; making major litigation and prosecution decisions; and
providing recommendations to the Attorney General on matters that fell
within her decision-making purview.

As a partner at Crowell & Moring LLP from 2001 to 2007, 1 focused
principally on complex civil litigation, while also conducting internal
investigations. My general litigation practice included cases in several
substantive areas, including employment discrimination, personnel
matters, commercial and other contractual arrangements, tort, intellectual
property (patents) and antitrust. Internal investigations included
allegations of kickbacks, false statements, and fraud. Appearances in
court were occasional, consistent with the typical litigation practice in a
large law firm.

As the Managing Associate General Counsel for Litigation at the Federal
Home Loan Mortgage Corporation (“Freddie Mac”) from 2007 to 2008, 1
supervised a small group of attorneys who comprised the General
Litigation Group. This Group was responsible for offensive and defensive
litigation, and providing litigation risk mitigation advice to the business
areas. The cases were litigated before both administrative bodies and
courts, and during iny tenure, included equal employment opportunity,
intellectual property, tort, antitrust, fraud, contract, and securities, among
others. Outside counsel was usually retained to represent the Corporation
in court, with the in-house Litigation Group serving in an active support
role.

From 1 993 to 2006, 1 was an adjunct faculty member at The George
Washington University Law School where 1 assisted in teaching a trial
advocacy course during the fall semester. In addition, from 1987 to 1998,
I lectured on issues of employment discrimination law in programs
sponsored by the Public Administration Forum, a non-profit corporation
that presented training programs in the field of federal employment.

ii. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.

73

1081

The clients on whose cases I worked while at the law firm of Steptoe &
Johnson from 1981 to 1986 were typically corporate clients, many of
which were in the railroad and insurance industries. As an Assistant
United States Attorney from 1986 to 1993, my client was the United
States, represented by the various agencies of the Federal Government.

As the Associate Solicitor for the Division of General Law at the
Department of the Interior from 1 993 to 1 995, my client was the
Department of the Interior. As the United States Attorney from 1998 to
2001 , my clients were the United States and the District of Columbia. As
a partner in private practice at Crowell & Moring LLP from 2001 to 2007,
my clients were individuals, corporations, government entities, private
companies, non-profit organizations, and educational institutions. Finally,
as the Managing Associate General Counsel for Litigation at the Federal
Home Loan Mortgage Corporation (Freddie Mac”) from 2007 to 2008, my
client was Freddie Mac.

I have been a general litigator throughout my legal career, focusing on the
development of litigation skills and the ability to quickly master complex
facts, while becoming proficient in the particular substantive legal area(s)
presented. I have served as lead counsel in cases involving a variety of
substantive areas, including equal employment opportunity (individual and
class actions), tort, contract (government, commercial and employment),
Administrative Procedure Act, Freedom of Information Act, Privacy Act,
antitrust and intellectual property. At other times I have supervised or
otherwise participated substantially in major decision-making in both civil
and criminal matters.

In addition to my focus on general litigation, 1 developed a particular
expertise in the law of employment discrimination, including major class
actions, during my tenure as an Assistant United States Attorney from
1986 to 1993.

Finally, while at Crowell & Moring LLP, 1 also conducted internal
investigations. This focus was fueled by my experience as an Inspector
General and as United States Attorney.

c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.

I estimate that over 90% of my practice has been in litigation. The frequency of
my appearances in court has varied depending on the position in which I was
serving at the time. From October 1981 to January 1 986 while serving as an
Associate at the law firm of Steptoe & Johnson LLP, I did not appear in court. As
a staff Assistant United States Attorney in the Civil Division of the United States
Attorney’s Office for the District of Columbia from February 1986 to October

74

1082

1 989, 1 appeared in court frequently. From October 1989 to August 1 993 while
serving in the supervisory positions of Assistant Chief and Deputy Chief of the
Civil Division, 1 appeared in court occasionally - principally in connection with
significant matters. For the period September 1993 to April 2001 when I served
as the Associate Solicitor for the Division of General Law at the United States
Department of the Interior (September 1 993 to April 1 995), the Inspector General
at the Department of the Interior (April 1 995 to January 1 998) and the United
States Attorney for the District of Columbia (January 1998 to April 2001), I did
not appear in court. As a partner with the law firm of Crowell & Moring LLP
from June 2001 to September 2007, 1 appeared in court occasionally. As the
Managing Associate General Counsel for Litigation at the Federal Home Loan
Mortgage Corporation (“Freddie Mac") from October 2007 to December 2008, 1
did not appear in court. I also have not appeared in court from July 2009 to the
present while serving as Senior Advisor to ihe Secretary of the Interior (July to
August 2009) and Assistant Secretary for Land and Minerals Management
(August 2009 to present).

i. Indicate the percentage of your practice in: **

1 . federal courts: approx. 98%

2. state courts of record: approx. 2%

3. other courts:

4. administrative agencies:

ii. Indicate the percentage of your practice in: **

1. civil proceedings: approx. 98%

2. criminal proceedings: approx. 2%

** I have interpreted these questions as referring to cases personally handled.
Thus, I have not included criminal cases in which I became involved as United
States Attorney, criminal investigations which I oversaw as Inspector General, or
the fact that a large portion of the U.S. Attorney’s Office practice is in a state
court of record.

d. State the number of cases in courts of record, including cases before

administrative law judges, you tried to verdict, judgment or final decision (rather
than settled), indicating whether you were sole counsel, chief counsel, or associate
counsel.

I have tried ten cases, all of which were civil matters in the United States District
Court for the District of Columbia. In nine of those cases, I was the sole counsel
of record, with counsel from the defendant Federal agency serving in an “Of
Counsel” capacity. I served as chief counsel in the tenth case, which I co-tried
with a more junior Assistant United States Attorney.

75

1083

i. What percentage of these trials were:

1. jury: 10%

2. non-jury: 90%

e. Describe your practice, if any, before the Supreme Court of the United States,
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any
oral argument transcripts before the Supreme Court in connection with your
practice.

I have not practiced before the Supreme Court of the United States.

17. Litigation : Describe the ten (10) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give a capsule summary of
the substance of each case. Identify the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case:

a. the date of representation;

b. the name of the court and the name of the judge or judges before whom the case
was litigated; and

c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.

1) United States v. SBC Commons. Inc.. 489 F. Supp. 2d 1 (D.D.C. 2007).

Dat es of Representation : 2006-2007

Parties Represented : SBC Communications and AT&T Corporation

Judge: The Honorable Emmet Sullivan

Co-Counsel :

Counsel for the
Department of
Justice :

William Randolph Smith, Esq.
Crowell & Moring LLP
1001 Pennsylvania Avenue, NW
Washington, DC 20004
(202) 624-2700

Claude F. Scott, Jr., Esq.

United States Department of Justice
450 Fifth Street, NW, Suite 4100
Washington, DC 20530
(202) 353-0378

76

1084

Summary : This case involved the first application of the Tunney Act (Section 2(b) of
the Antitrust Procedures and Penalties Act, 15 U.S.C. section 1 6(b)-(h)) in a contested
proceeding following Congress’ amendment of the Act in 2004 to strengthen the
court’s role in reviewing antitrust consent decrees proposed by the Department of
Justice. Following the announced merger of SBC and AT&T (as well as Verizon and
MCI), a determination by the Department of Justice that the merger would violate the
antitrust laws (Section 7 of the Clayton Antitrust Act, 15 U.S.C. section 18), and an
agreement by the Department of Justice and the merging parties regarding divestitures
that would take place to address the alleged violations, the Department of Justice
sought a ruling from the Court that the proposed final judgments were “in the public
interest.” Such a ruling was strongly opposed on various grounds by several amici
curiae. The Court conducted a searching inquiry of the legislative history of the 2004
amendments, developed a comprehensive record, and engaged in a thorough review
of the issues presented. These issues included the proper standard of review, the
authority of the Court to inquire into matters outside the complaint as drafted by the
Department of Justice, and the amount of deference to be accorded the Government’s
assessment of the adequacy of the proposed settlements.

Result : The Court concluded that the scope of its review was “sharply proscribed”;
that it did not have carle blanche to reach beyond the Government’s complaint; and
that the Government needed to establish only a factual basis for its conclusion that the
settlements are reasonably adequate remedies for the alleged harms. Based on these
principles, the Court ruled in favor of the Government and the merging parties,
finding that entry of the proposed final judgments was in the public interest.

Role : I served as co-lead counsel for SBC and AT&T in the Tunney Act proceedings.
Because 1 was not involved in the underlying merger transaction, I was required to
quickly become familiar with the telecommunications issues presented. In addition,
because this was a case of first impression in view of the 2004 amendments to the
Tunney Act, it required detailed research and sophisticated analysis. I participated
actively in preparing the filings submitted to the Court on behalf of SBC and AT&T,
and presented all of the oral arguments on behalf of these parties at the hearings.

2) Thompson v. U.S. Department of Housing & Urban Development . 404 F.3d 821 (4th
Cir. 2005).

Dates of Representation : 2004-2005

Party Represented : Plaintiff-Appellee Thompson et al.

Judges : The Honorable William Waiter Wilkins
The Honorable M. Blane Michael
The Honorable William Byrd Traxler, Jr.

77

1085

Co-Counsel : David L. Haga, Esq.

(formerly with Crowell & Moring LLP)

Assistant General Counsel
Verizon

1320 North Courthouse Road
Arlington, Virginia 22201
(703) 351-3065

Andrew D. Freeman, Esq.

Brown, Goldstein & Levy LLP
120 East Baltimore Street, Suite 1700
Baltimore, Maryland 21202
(410) 962-1030, ext. 1313

Opposing Counsel : Thomas Mark Bondy, Esq.

United States Department of Justice
Civil Division, Appellate Section
601 D Street, NW, Room 9548
Washington, DC 20530
(202) 5 1 4-4825

S ummary : A group of African-American residents of public housing brought a class
action lawsuit against the Department of Housing and Urban Development (HUD),
the Housing Authority of Baltimore city, and Baltimore city officials alleging racial
segregation and discrimination in Baltimore’s public housing system. The parties
settled some of the claims, memorializing their agreement in a Partial Consent Decree
that imposed numerous obligations on the local defendants and HUD. With the end
of the Court’s jurisdiction over HUD approaching and in the face of the failure of the
local defendants to fulfill their obligations under the Consent Decree, the residents
moved to modify the Decree to extend the period that the Court would exercise
jurisdiction over HUD. The District Court (Garbis, J.) granted the motion, extending
its jurisdiction over HUD until the agency demonstrated that its obligations were
fulfilled approximately to the same extent as was reasonably contemplated by the
original timeframe of the Court’s jurisdiction over the agency (2004 WL 1 058 1 00).
HUD appealed.

Result : On appeal, the Fourth Circuit affirmed, concluding that: (1) the District Court
did not abuse its discretion in concluding that there were significantly changed
circumstances warranting modification of the Consent Decree; (2) the absence of
fault by HUD did not preclude modification of HUD’s obligations under the Decree;
and (3) the modification was suitably tailored to address the changed circumstances.

Role : I served as lead counsel when this matter was on appeal. In this capacity, I
participated in drafting and finalizing the appellate brief, and argued the case before
the Fourth Circuit.

78

1086

3) Hvatt v. Dudas . 2005 WL 5569663 (D.D.C. 2005), on reconsideration , 2006 WL
4606037 (D.D.C. 2006).

Dates of Representation : 2003 - 2005

Party Represented : Gilbert P. Hyatt

Judge: The Honorable Henry Kennedy, Jr.

Co-Counsel : Michael I. Coe, Esq.

(formerly with Crowell & Moring LLP, now deceased)

Opposing Counsel : Rhonda C. Fields, Esq.

Assistant United States Attorney
United States Attorney’s Office
555 Fourth Street, NW
Washington, DC 20001
(202)514-6970

Summary : This case is one of several matters in which 1 served as lead counsel for
the plaintiff in his challenges to the United States Patent and Trademark Office’s
(PTO) rejection of his patent applications. The complexity of the issues presented
stemmed in large part from the unique nature of the proceedings when challenges to
rulings by the PTO are brought, as here, in the United States District Court for the
District of Columbia pursuant to 35 U.S.C. section 1 45 where new evidence can be
introduced, rather than via the more traditional avenue of appeal to the Federal
Circuit, under 35 U.S.C. section 141, where review is on the administrative record.
The plaintiff here sought to introduce additional evidence in the form of his
declaration. The absence of clear precedent under section 145 required extensive
research and detailed analysis to resolve threshold issues, including the proper
standard of review and the extent to which additional evidence can be introduced in a
section 1 45 case.

Result : Agreeing with plaintiff Hyatt, the Court concluded that if the patent applicant
introduces additional evidence in a section 145 case that conflicts with the PTO’s
findings, the PTO’s fact-findings are reviewed de novo, rather than under the
deferential “substantial evidence” standard. The Court also agreed with Hyatt that his
declaration (a declaration from the inventor) could constitute such additional
evidence. The Court concluded, however, that Hyatt could not adequately explain
why the additional evidence was not presented to the PTO during the administrative
proceedings; therefore, plaintiffs declaration was not considered by the Court.
Evaluating plaintiffs challenges to the PTO’s ruling under the more deferential
“substantial evidence” standard, the Court found in favor of the PTO and granted its
motion for summary judgment.

79

1087

Role : As lead counsel for the plaintiff. I was actively involved in the extensive
briefing in this case, in coordination with co-counsel and another lawyer who served
in an “Of Counsel” capacity.

4) Tarpeh-Doe v. United States. 712 F. Supp. 1 (D.D.C. 1989), rev’d. 904 F.2d 719
(D.C. Cir. 1990).

Dates of Representation : 1988 - 1990

Agency Represented : Department of State

Judges : The Honorable Patricia Wald
The Honorable Abner Mikva
The Honorable James Buckley

Opposing Counsel : Joseph Michael Hannon, Jr., Esq.

Hannon Law Group, LLP
1901 18 lh Street, NW
Washington, DC 20009
(202) 232-1907

Summary : Plaintiffs sought to recover damages under the Federal Tort Claims Act
for neurological injury suffered by the minor plaintiff, allegedly due to negligent
medical care received in Liberia, where the minor's mother was assigned as an
employee of the Agency for International Development. This appeal presented the
question whether the Secretary of State’s discretionary authority to pay tort claims
that arise in a foreign country in connection with State Department operations abroad
created constitutionally protected interests that required the incorporation of
procedural due process protection in the administrative adjudication of a tort claim.
Based on the conclusion that the applicable statutes and implementing regulations
entitled a claimant to the traditional safeguards of due process, the District Court
(Oberdorter, J.) ordered the defendant agency to reconsider plaintiffs’ administrative
tort claim utilizing a procedure that: disclosed the evidence relied upon in
adjudicating the claim; afforded plaintiffs an opportunity to respond; and included
findings of fact by the decision maker in connection with the final resolution of the
claim.

Result : The District of Columbia Circuit reversed, concluding that the applicable
statutes and regulations did not create constitutionally protected interests that justified
the imposition of the additional procedures ordered by the District Court.

Role: As counsel of record, I was responsible for briefing and arguing this matter in
both the District Court and the Court of Appeals. In addition to the due process issue
raised on appeal, briefing in the District Court included the government’s successful
motion to dismiss two counts of the complaint alleging Negiigence/Breach of
Contract and Breach of Warranty on the ground that those counts charged tortious

80

1088

conduct outside of the United States, and thus were barred under the foreign country
exception to the Federal Tort Claims Act. Counsel from the defendant agency served
in an “Of Counsel” capacity.

5) Arnold v. United States Postal Service . 667 F. Supp. 6 (D.D.C. 1987), rev’d . 863 F.2d
994 (D.C. Cir. 1988).

Dates of Representation : 1987-1988

Agency Represented : United States Postal Service

Judges : The Honorable James Buckley

The Honorable Douglas H. Ginsburg

The Honorable Leonard I. Garth (U.S. Senior Circuit Judge for the Third
Circuit sitting by designation pursuant to 28 U.S.C. section 294(d))

Opposing Counsel : Joseph E. Kolick, Jr., Esq.

Dickstein, Shapiro, Morin & Oshinsky
1 825 Eye Street, NW
Washington, DC 20006
(202) 420-2253

Summary : A class of postal inspectors mounted a successful challenge in the District
Court (Richey, J.) to the senior-first directed transfer component of the Postal
Inspection Service’s Career Path Policy on the ground that it discriminated on the
basis of age under both disparate impact and disparate treatment theories. The senior-
first component - by which the most senior level 23 postal inspectors, in terms of
service, were selected for mandatory reassignment - was the third prong of a three-
part policy designed to ensure that all level 23 postal inspectors spent five years in a
major metropolitan area during their service. The senior-first option was used only in
the absence of a sufficient number of level 23 volunteers or bids for promotion by
level 21 inspectors.

Result : On appeal, the District of Columbia Circuit reversed. Assuming, without
deciding, that disparate impact theory applied to age discrimination cases, the Court
of Appeals concluded that the District Court erred in failing to consider the impact of
the senior-first component in the context of the Career Path Policy as a whole,
including its voluntary components. When so considered, the Court of Appeals
concluded that the plaintiffs had failed to establish discrimination under either
disparate impact or disparate treatment theories.

Role : I was assigned to this matter as counsel of record following the District Court’s
adverse decision. Accordingly, I was responsible for briefing and arguing the case in
the Court of Appeals. Assistance was provided by counsel from the defendant
agency, who served in an “Of Counsel” capacity.

81

1089

6) Mac'Avov v. The Smithsonian Institution . 757 F. Supp. 60 (D.D.C. 1991).

Dates of Representation : 1989-1991

Agency Represented : The Smithsonian Institution

Judge : The Honorable Thomas F. Hogan

Opposing Counsel : Thomas R. Kline, Esq.

Andrews &. Kurth, LLP
1350 1 Street, NW, Suite 1100
Washington, DC 20005
(202) 662-2739

Summary : The plaintiff claimed that a collection of artwork that was given by the
artist as gifts to the Smithsonian Institution in the late 1960’s was in fact only a loan,
and that he was the true owner of the artwork. The donor, a United States citizen who
spent most of her life in France, had died in the early 1970’s. Claiming ownership
pursuant to an Act of Sale and under various theories, including bailment, replevin,
Fifth Amendment due process. Fifth Amendment takings, the Administrative
Procedure Act (APA) and French property law, the plaintiff sought return of the
artwork, nominal damages and attorney’s fees and costs.

Result : The District Court granted the government’s motion to dismiss or for
summary judgment, finding that no bailment contract was created; the replevin claim
sounded in tort, and thus was barred by the plaintiff’s failure to file a timely
administrative claim under the Federal Tort Claims Act; plaintiff failed to state a Fifth
Amendment due process or takings claim; plaintiff lacked standing to state a claim
under the APA; and plaintiff failed to establish a property right under French law.

Role : As counsel of record, 1 was responsible for all aspects of the case, with
assistance provided by counsel from the defendant agency serving in an “Of Counsel”
capacity. The case Involved extensive discovery in both the United States and
France. In addition, it raised challenging choice of law issues and complex questions
of French law, which required retention of, and work with, experts in French law.
Finally, the multiplicity of plaintiffs claims necessitated extensive research, analysis
and briefing.

7) Lewis v. Bradv . 54 FEP Cases 861 (D.D.C. 1990).

Dates of Representation : 1989-1990

Agency Represented : Bureau of Engraving & Printing, Department of the Treasury
Judge : The Honorable Thomas F. Hogan

82

1090

Co-Counsel : Richard N. Reback, Esq.

(former Assistant United States Attorney)

General Counsel to the Inspector General

United States Department of Homeland Security

Office of Inspector General

245 Murray Drive, SW, Building 410

Washington, DC 20528

(202) 282-8000

Opposing Counsel : David Donovan, Esq.

(formerly with Wilmer, Cutler & Pickering, now
WilmerHale)

General Counsel, Washington Redskins
21300 Redskin Park Drive
Asbbum, Virginia 20147
(703) 726-700

Michael Stevenson, Esq.

(formerly with Wilmer, Cutler &. Pickering, now
WilmerHale; current address unknown)

Opposing Counsel : Joseph Sellers, Esq.

(formerly with Washington Lawyers’ Committee for Civil
Rights and Urban Affairs)

Cohen Milstein
1666 K Street, NW
Washington, DC 20006
(202) 408-4600

Summary ; A group of African-American non-craft employees at the Bureau of
Engraving & Printing brought a class action lawsuit under Title VII of the Civil
Rights Act of 1964 challenging virtually every aspect of the Bureau’s hiring and
promotion into the craft ranks in the plalcprinting, bookbinding and press crafts on
grounds of alleged discrimination. Among other claims, the plaintiffs challenged the
need for, length of, and testing requirements for entry into apprenticeship programs;
journeyman hires; the classification of various positions as craft or non-craft; and the
titling of certain positions as bookbinder positions. Plaintiffs also brought into
question the knowledge, skills and abilities of employees in craft positions as
compared with those in non-craft positions. Plaintiffs sought millions of dollars in
back pay, injunctive, and other relief.

Result : On the first morning of what was expected to be a six to eight week trial, the
case settled for $1 .4 million in back pay and other relief.

Role : I was assigned to this case approximately six months prior to the trial date. As
co-counsel, 1 was actively involved with all aspects of the pre-trial proceedings and

83

1091

trial preparation. This work included extensive discovery; identification, retention,
consultation with, and preparation of eight expert witnesses; numerous written
submissions to the Court on discovery disputes and pretrial matters, including a
partially successful motion regarding class certification and successful oppositions to
a lengthy motion in limine and a detailed motion for partial summary judgment; oral
arguments on a variety of discovery and pretrial matters; case development; and trial
preparation. Together with my co-counsei, and with counsel from the defendant
agency serving in an “Of Counsel” capacity, we developed virtually all aspects of this
case in six months. I was also actively involved in settlement negotiations associated
with committing to writing the terms of an agreement in principle.

8) Alamo Aircraft Supply, Inc, v. Carlucci . 698 F. Supp. 8 (D.D.C. 1988).

Dates of Representation : 1988- 1989

Agency Represented : Department of Defense

Judge : The Honorable Harold H. Greene

Opposing Couns el: James M. McHale, Esq.

(formerly with Seyfarth, Shaw, Fairweather & Geraldson)
Special Counsel

Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
(202)551-6000

S ummary : The plaintiffs sought a temporary restraining order and a preliminary
injunction when they were suspended from government contracting by the
Department of the Army based on the firm’s indictment by a Federal grand jury for
bidrigging and mail fraud. Plaintiffs claimed they could not be suspended in advance
of a suppression hearing under Title III in which they would have the opportunity to
test the legality of the wiretap evidence that allegedly provided the basis for the
indictment. The District Court granted plaintiffs’ motions for a temporary restraining
order and a preliminary injunction. In so ruling, the Court rejected the government’s
argument that, in suspending the contractor, the defendant was entitled to rely on the
existence of the indictment in order to immediately protect the government’s interests
against potentially unscrupulous contractors, without going behind the face of the
indictment to examine the underlying evidence and probe the grand jury’s reasons for
issuing the indictment. The government’s motion for stay pending appeal was also
denied by the District Court.

Result : On appeal, the District of Columbia Circuit concluded that a serious legal
question had been presented that could result in the government prevailing on appeal,
and granted a stay of the preliminary injunction pending appeal. (No. 88-5309 (Oct.
13, 1988; Nov. 2, 1988)). After the firm’s suspension from government contracting

84

1092

was lifted by the Agency based on the impending dismissal of the indictment, the
government successfiilly moved in the Court of Appeals for dismissal of the appeal
on grounds of mootness, and for an order vacating the District Court’s adverse
decision.

Role : As counsel of record, I was responsible for briefing and arguing this matter in
the District Court and for the briefing in the Court of Appeals. Counsel from the
defendant agency served in an “Of Counsel" capacity.

9) Odoms v. Esov . No. 90-1469 (D.D.C. 1993).

Dates of Representation : 1992-1993

Agency Represented : Department of Agriculture

Judge: The Honorable June L. Green

Co-Counsel : Stacy M. Ludwig, Esq.

(former Assistant United States Attorney)

Deputy Director, Professional Responsibility Advisory
Office

United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC
(202) 514-2000

Opposing Counsel : Gary T. Brown, Esq.

Gary T. Brown & Associates
1050 17 ,h Street, NW, Suite 1000
Washington, DC 20036
(202) 393^(900

Summary : This was the first employment discrimination jury trial against the Federal
Government in the District of Columbia. Plaintiff claimed that he was discriminated
against on the basis of race under Title VII of the Civil Rights Act of 1964, as
amended by the Civil Rights Act ofl991 (Title VII), when his job as a safety officer
was classified at the GS-1 1 grade level rather than at a higher grade; his ability to
perform his job was impeded; and he received lower performance ratings than
warranted. Among other things, the plaintiff sought compensatory damages for the
physical ailments, emotional pain, suffering and mental anguish that he claimed to
have suffered as a result of the alleged discrimination.

Result : The jury returned a verdict for the Government on the issues regarding
position classification and performance ratings. The jury hung (7-1 in favor of the
Government) on the issue regarding impeding of job performance.

85

1093

Role : I was assigned to this case during the discovery phase and served as lead
counsel , co-trying the case with a more junior Assistant United States Attorney. The
Court ruled approximately two weeks before trial that the Civil Rights Act of 1991
applied retroactively to this case, thus rendering the compensatory damages and jury
trial provisions of the new law applicable to the pending case. Because the Court’s
ruling was rendered so close to the trial date, and there was little by way of precedent
or sample documents upon which to rely, the final preparation and trial of the case
required considerable effort to bring it to a successful conclusion.

1 01 Noble v. Herrington. No. 85-1507, slip op. (D.D.C. Feb. 16, 1988).

Dates of Representation : 1 986 - 1 988

Agency Represented : Department of Energy

Judge : The Honorable Charles R. Richey

Opposing Counsel : Christopher T. Lutz, Esq.

Steptoe & Johnson, LLP
1330 Connecticut Ave.,NW
Washington, DC 20036
(202) 429-3000

Summary : Plaintiff claimed that she was discriminated against on the basis of sex in
violation of Title VII of the Civil Rights Act of 1 964 when she was denied a
promotion to the GS-14 level, and that she was constructively discharged as a result
of an alleged progressive campaign of harassment and hostility waged by her fellow
employees and participated in, or sanctioned by, her supervisors. The case also
presented the question whether the plaintiff was entitled to seek enforcement of a
favorable Equal Employment Opportunity Commission (EEOC) ruling on her claim
of reprisal and at the same time to present additional evidence of alleged acts of
reprisal at trial that were rejected at the administrative level.

Result : Following a week-long trial, the Court entered judgment in favor of the
Government on plaintiff s sex discrimination and constructive discharge claims. The
Court also granted plaintiffs motion for partial summary judgment to enforce the
EEOC’s ruling on the reprisal claim and awarded appropriate relief, but did not
permit plaintiff to introduce any further evidence of reprisal at trial.

Role : I was counsel of record with responsibility for all aspects of the case, which
included extensive discovery, expert witness preparation and testimony, and
considerable pre-and post-trial filings. Assistance was provided by counsel from the
defendant agency, who served in an “Of Counsel” capacity.

1 8. Legal Activities : Describe the most significant legal activities you have pursued,

including significant litigation which did not progress to trial or legal matters that did not

86

1094

involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organization(s) for whom you performed lobbying activities and describe
the lobbying activities you performed on behalf of such client(s) or organizations(s).
(Note: As to any facts requested in this question, please omit any information protected
by the attorney-client privilege.)

In addition to handling cases, I have had the privilege of participating in a number of
significant legal activities during my professional career. Among them are the following:

1 . As the United States Attorney for the District of Columbia from 1 998 to 2001 , 1 led
the largest United States Attorney’s Office in the country with the unique responsibility
of serving as both federal and local prosecutor. During my tenure, J spearheaded and
oversaw the implementation of several major law enforcement initiaf ves designed to
address various issues of concern in the District of Columbia. The following are
illustrative.

Community Prosecution : The city-wide expansion of the Fifth District Community
Prosecution (CP) pilot project paired prosecutors and community outreach specialists
with geographically assigned areas of the city in all seven police districts. The
expansion of CP resulted in enhanced interaction with the community, an increased flow
of information, and an establishment of partnerships for better neighborhoods, all of
which coincided with a significant reduction in crime.

Gang Prosecut i on & Intelligence Section : This section was created to more effectively
address the problems associated with gang violence in the District of Columbia. Between
the spring of 1999 and April 2001, the United States Attorney’s Office indicted or tried to
a successful conclusion five major gangs. The gang investigations resulted in the
conviction of 90 defendants, the indictment of 88 additional defendants, and the seizure
of 1 75 firearms.

Public Corruption : Under my leadership, the United States Attorney’s Office increased
its focus on public corruption cases, recognizing a need to ensure the community that
those who violate the public trust would be investigated and held accountable. From
1 998 to 2000, the number of public corruption investigations and convictions increased
dramatically.

Conditions of Release Enforcement f CORE I Program : This program was designed to
address the “revolving door” syndrome, where some defendants on pretrial release would
violate their court-ordered conditions of release, and continue to victimize individuals
and neighborhoods. The CORE program focused on more aggressively pursuing and
prosecuting these defendants on charges of criminal contempt. In certain neighborhoods,
there was a decline in the quality-of-life offenses that had routinely been committed by
repeat offenders on pre-trial release.

Youth Crime Prevention Programs : Under my leadership, the United States Attorney’s
Office created new mentoring, tutoring and crime prevention programs for youth. We

87

developed a Drug Education for Youth summer camp and year-long mentoring program.
We also developed an anti-violence program, which was presented in schools throughout
the District of Columbia by members of the United States Attorney’s Office and
representatives from the Metropolitan Police Department and the Bureau of Alcohol,
Tobacco and Firearms. Finally, we initiated Project LEAD (Legal Enrichment and
Decision-making) in various schools throughout the city, where Assistant United States
Attorneys presented an interactive curriculum that helped children develop the
knowledge, skills, understanding and values to realize the promise of their potential.

Legislative Efforts : I created a new senior level position within the immediate office of
the United States Attorney that was dedicated to legislative efforts and designed to help
the Office assume a more proactive role in contributing to the law enforcement legislative
agenda in the District of Columbia. As a result of this initiative, we developed, submitted
to the Council of the District of Columbia and offered testimony regarding legislative
proposals that resulted in the Bail Reform Amendment Act of 2000 and the Distribution
of Marijuana Amendment Act of 2000, while providing valuable input on other pieces of
legislation.

2. In 2002, 1 was appointed by the Board of Governors of the District of Columbia Bar to
a six-year term as a member of the District of Columbia Judicial Nomination
Commission. The Commission is charged with recommending to the President of the
United States three candidates to fill each judicial vacancy on the Superior Court of the
District of Columbia and the District of Columbia Court of Appeals, and with selecting
the Chief Judges of the Superior Court and the Court of Appeals. During my tenure, I
participated in filling 14 vacancies on the Superior Court and four vacancies on the Court
of Appeals, and selecting two Chief Judges for the Court of Appeals and one for the
Superior Court. These activities included reviewing applications, interviews with
applicants, and Commission deliberations and decision-making.

3. From 1993 to 1 997 and 2002 to the present, I have served on the Advisory Committee
on Local Rules for the United States District Court for the District of Columbia. The
Committee drafts and makes recommendations to the Court regarding local niles to
augment the Federal Rules of Civil and Criminal Procedure and govern practice in the
United States District Court for the District of Columbia.

4. In 2004, 1 was nominated by Mayor Anthony Williams and confirmed by the Council
of the District of Columbia to serve on the District of Columbia Board of Elections and
Ethics. I was also appointed by Mayor Williams to serve as Chairman of the Board. The
three-member Board oversees an independent agency of the District of Columbia
Government that is responsible for the administration of elections, ballot access, voter
registration and related matters. Through the Office of Campaign Finance, the Board is
also charged with administering and enforcing District of Columbia laws, rules and
regulations pertaining to campaign finance, lobbying, conflict of interest and the ethical
conduct of public officials.

1096

I chaired the Board’s monthly public meetings, special meetings, and hearings on matters
that fell within the Board’s jurisdiction. I also actively participated in the deliberations of
the Board and the preparation of written orders and opinions that memorialized the
decisions made. One of the most significant cases during my tenure was the challenge,
on grounds of widespread fraud and other irregularities, to the signature-gathering
process associated with the petition to piace on the ballot the issue regarding the
installation of video lottery terminals in the District of Columbia. Following nine days of
hearings and the rejection of several thousand signatures on grounds of forgery, fraud and
other election law violations, the Board concluded that there was an insufficient number
of legitimate signatures for the video lottery terminal initiative to qualify for the ballot.
The District of Columbia Court of Appeals affirmed the Board’s ruling. (Citizens
Comm, for the D.C. Video Lottery Terminal Initiative v. D.C. Bd. of Elections and
Ethics. 860 A.2d 8 1 3 (D.C. 2004)).

5. For much of my professional career, I have mentored or otherwise shared my
experiences with junior or less experienced attorneys, individuals aspiring to be attorneys
and others. These professional development activities have involved one-on-one
interactions, participation in group-sponsored networking events, and participation as a
panelist or guest speaker in many programs. My activities have included participation in:
programs at law schools, including Harvard, Howard, George Washington, Georgetown
and the University of the District of Columbia; programs sponsored by Bar Associations,
including the Women’s Bar Association and the Greater Washington Area Chapter
Women Lawyers Division of the National Bar Association; programs geared toward
young professionals such as the Institute for Caribbean Studies Young Professionals
Initiative; and programs geared toward aspiring and young attorneys, including the
Crowell & Moring Summer Associate Luncheon Program, the Law Clerk Speakers
Program at the United States Courthouse in the District of Columbia, and a session with
Supreme Court Judicial Fellows and Interns. I have also engaged with our youth,
including through programs such as Law Day activities and other visits to schools;
participation in the United States Attorney’s Office Drug Education for Youth program;
participation in the National Youth Leadership Forum on Law program; sharing
experiences with Girl Scouts; and providing remarks at a Virgin Islands High School
Appellate Moot Court competition.

I have not performed any lobbying activities on behalf of any clients or organizations.

1 9. Teaching : What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.

From 1993 to 2006, 1 assisted in teaching a trial advocacy course during the fall semester
as an adjunct faculty member at The George Washington University Law School. Each
semester, I was responsible for teaching the fundamentals of trial practice to a break-out
group of approximately eight to twelve students who prepared and presented assignments
designed to familiarize them with trial preparation and presentation techniques. The

89

1097

participatory format of the break-out sessions enabled the students to receive
individualized instruction and constructive critiques of their performance throughout the
semester. At the conclusion of the course, the students participated in mock trials. Copy
of a sample syllabus supplied.

20. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest.

I do not have any deferred income or future benefit arrangements arising from any prior
business relationships.

21 . Outside Commitments During Court Service : Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.

I do not have any current plans, commitments, or agreements to pursue outside
employment during my service with the court.

22. Sources of Income : List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding $500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1 978, may be substituted here).

See attached Financial Disclosure Report.

23. Statement of Net Worth : Please complete the attached financial net worth statement in
detail (add schedules as called for).

See attached Net Worth Statement.

24. Potential Conflicts of Interest :

a. Identify the family members or other persons, parties, categories of litigation, and
financial arrangements that are likely to present potential conflicts-of-interest
when you first assume the position to which you have been nominated. Explain
how you would address any such conflict if it were to arise.

There are no potential conflicts of interest of which I am aware that are likely to
arise if I am confirmed as a judge for the District of the Virgin Islands. If any
such potential conflicts were to arise, I would seek to avoid not only an actual
conflict of interest, but the appearance of such a conflict. With this goal in mind.

90

1098

1 would review carefully the Code of Conduct for United States Judges together
with any other relevant Canons, statutory provisions and applicable guidance. In
addition, I would consult with the Chief Judge, other experienced jurists, and
available ethics personnel. I would apply the applicable rules scrupulously and
err on the side of caution in instances of doubt.

b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.

In determining whether there is a potential conflict of interest and resolving any
such conflict, I would review carefully the Code of Conduct for United States
Judges together with any other relevant Canons, statutory provisions and
applicable guidance. In addition, I would consult with the Chief Judge, other
experienced jurists, and available ethics personnel. I would apply the applicable
rules scrupulously and err on the side of caution in instances of doubt. If any
potential conflicts arise, I would always seek to avoid not only an actual conflict
of interest, but the appearance of such a conflict.

25. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar

Association’s Code of Professional Responsibility calls for “every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving the disadvantaged.” Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.

My pro bono efforts have taken several forms. First, I have done legal work on pro bono
matters. This work has ranged from matters such as my Fourth Circuit briefing and
argument in Tho mpson v. U .S. D epartment of Ho u sing & Urban Development . 404 F.3d
821 (4th Cir. 2005), in which the Fourth Circuit affirmed the District Court’s extension of
the Court’s jurisdiction over HUD under a Partial Consent Decree entered in a public
housing discrimination case, to work on a class action accommodations discrimination
case involving a commercial establishment, to work involving a negotiated resolution
with a business manager regarding the dismissal of a teenage employee, as well as other
matters.

Second, all of my service on Boards of Directors has been without compensation. This
has included service on boards such as that of the Washington Lawyers’ Committee for
Civil Rights and Urban Affairs (seven years), which solicits assistance from, and works
with, law firms in providing pro bono legal representation in civil rights cases; the High
Tea Society (four years), which exposes underprivileged pre-teen and teenage girls to
educational, social, cultural and other developmental opportunities; and the Washington
Area Tennis Patrons Foundation (two years), which sought to increase and improve
tennis opportunities for youth in the District of Columbia metropolitan area.

Third, 1 have assisted legal services programs in their fundraising efforts. In 2003, 2004
and 2005, 1 served as Co-Chair of the Whitman-Walker Clinic Legal Services’ annual
“Going the Extra Mile” fundraising campaign. In addition, in 2003, 1 served as the

91

1099

Honorary Chair of the Legal Aid Associates Campaign, with the key speaking role at the
Campaign’s kick-off reception.

Finally, 1 have also had opportunities to engage with our youth including through
programs such as Law Day activities and other visits to schools, and participation in the
United States Attorney’s Office Drug Education for Youth program.

26. Selection Process :

a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
the interviews in which you participated). Is there a selection commission in your
jurisdiction to recommend candidates for nomination to the federal courts? If so,
please include that process in your description, as well as whether the commission
recommended your nomination. List the dates of all interviews or
communications you had with the White House staff or the Justice Department
regarding this nomination. Do not include any contacts with Federal Bureau of
Investigation personnel concerning your nomination.

After learning of an impending vacancy on the Federal bench in the Virgin
Islands, i expressed my interest in being considered for the position to the
Delegate to Congress from the Virgin Islands, The Honorable Donna Christensen,
and forwarded a copy of my resume to her in or about May 2008. I subsequently
learned that the Virgin Islands Bar Association had formed an ad hoc Judicial
Nominating Committee to consider applicants for the judicial position and make
recommendations to the Virgin Islands Delegate to Congress. In September and
October 2008, 1 submitted the requested application materials to the Judicial
Nominating Committee, and was interviewed by the Committee in December
2008. By letter dated December 30, 2008, the then-President of the Virgin Islands
Bar Association informed Congresswoman Christensen that the Judicial
Nominating Committee had issued its report and recommended me to fill the
judicial vacancy. In or around the first quarter of 2009, 1 received a telephone call
from, and had a conversation with. Congresswoman Christensen about my
candidacy for the judicial position.

On or about September 29, 201 0, 1 learned from Congresswoman Christensen that
she was supporting my nomination for the judicial position. Since October 12,
2010, 1 have been in contact with pre-nomination officials at the Department of
Justice. I interviewed with attorneys from the White House Counsel’s Office and
the Department of Justice on January 13, 201 1 . The President submitted my
nomination to the Senate on March 2, 201 1 .

b. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any currently pending or specific case, legal issue or question
in a manner that could reasonably be interpreted as seeking any express or

92

1100

implied assurances concerning your position on such case, issue, or question? If
so, explain fully.

No.

AO 10
Rev. I.OOld

FINANCIAL DISCLOSURE REPORT
NOMINATION FILING

?~pon Required by the Bthht
in Governrrf/v Act of 1978
(S U.S.C. epp. Si IM-tlt)

1. P«n»« R*p<TT-t1r\g (iu( awoe, fir*!, middle initial)

2. C»uri tr OrjjilrtGoA

3. DMeiIRc^eO

Lewis. Wilma A.

District Court for 1 he Virgin Island*

03/M/201 1

* Title (Article ID judges twtieme »ai*e or mm or FaHis;
ttwgfstnfcjudgci indicate tuM- or pin-time)

Judge foe die District Court of Ihe Virgin Islands

St. Itepw Type (chetk appropriate type)

12 Nomiiartlmt D«cO)i«U/»!l

laitiel I f Anrwri | | final

fc Hrpertla j Period

01/01/2010

02/28/201)

ft. p~j Amended Report

7. Chrmturx or OttVf Ad.lrru

O.S. Dcpertmcjil of die Interior

1849 C Street, Nw

Room $615, MS-tf62tt MtB

9. On Ikt Uih el iIk InforaiMlM cootautcd la IW* Repair and any
modMlc litem pertaining RierMo, n k. In nqr aploloa, la eernp liner
«rt>b ippRcahle l«w* and regabtioau

IMPORTANT NOTES: The butmcticia tccompanping Als form must he fo&mmrd. Complete oil parts,
checking rftr NONE box for each part where jou hove no reportable information. Sign an last page.

!• POSITIONS. (OrpofAtg hJMJaol trrly; tte pp. af 0h%g /mwrrrriamj
[71 NONE (No reportable positions.)

EQSIT1QN NAME OF 0RQAM7ATIQN/ENT1TY;

2 .

II* AGREEMENTS. atrpomirg /* *djr ttt ff. is.it of /stiff btmnaioMj
I ] NONE (No reportable agreements.)

QA1E

r. 2007

Federal Home Loan Mortgage Corporation Thrift/4C)(k) Savings Flan with former employer — co eontribuitons by
patties

2, 2001 Crowell 8c Mortng LLP Retirement Plai with farmer law firm — no contributions by parties

2- 1981 Steptoe A Johnson LLP Pension Plan with former [aw firm - no contributions by parties

93

1101

FINANCIAL DISCLOSURE REPORT

N*we of P«noE> k*portlo p

Diuafflcpof!

Page 2 of 6

LcwR WJtou A.

HI* NON-INVESTMENT INCOME. (Jttponfng MivUuat o/ntipevn; wvpj* 17.24 vffilt"/ Iwrrvcftom-)

A, Filer's Non-Investment Income

1/1 "NONE (No reportable non-investment income .)

DATE SOURCE AND TYPE INCOME

(ymits. <w* spouse's)

B. Spouse's Non-Investment Income - If tom mre .wrW iuHng on? portion ufthi re p* rtltjr y**r, arm^lefr lAir frrtum.

IDotiar amount eoJ required cretpt far konororla.)

( ~1 NONE (No reportable norr-investment income.)

DATE SOURCE AND TYPE

l. Single

IV. REIMBURSEMENTS — notnparttltan, tolgtng, fvvd, tnttirain* if»l

ttnetuJn t/m it fo dpoiUf anJ lUpndt*/ cbnJrxtK mfli. if-lT tffJWng natoutrtnm.)

□

NONE (No reportable reimbursements.)
SOURCE DATES

LOCATION

PURPOSE

I. EXEMPT

1102

V . GIFTS. ffnettJn ibm tv jjwwr c nd dtpraia* tbd/rtn, ta pp. 2t~i! o/fJSmg frutr enUunJ
[ 1 NONE (No reportable gifts.)

VI. LIABILITIES. (tntSuilt lhait of rjuitiit bh 4 drpixdtnl ckpfrr*; itt pp }1*ii tniaectUia.)

| NONE (No reportable liabilities.)

CREDITOR

DESCRIPTION

VALUE CODE

1103

FINANCIAL DISCLOSURE REPORT

Page 4 of 6

VIL INVESTMENTS and TRUSTS - if tr wn, *e lum. Iranaaiant vf spomu *n£ dtptaibmr chiUrrnf m pp. 3tM>eff}ft*g IxiBvahnu.)

! 1 NONE (No reportable income, assets, or transactions.)

A.

B.

C.

D.

Dtiorjnlca ofAtttu

■ locoirc ifutiog

Gnui erd i

TrenjKtkKUibirmftrcponiflg period

(inclwtiogmm hkUI

xpartir g pe/iod

of rtptminn period

. 0)

. t*>

(t)

(2) |

<0

(2) (3)

<J2

H«k '(X)" after cwh *»ci

Amount

Typels.g..

V»hja

Valhtt

TypcC*g..

! Dice Value , Gain .

Wwiiiyof

exempt ftorr prior diictowrc

j <Jiv, trot

Cod: 2

Method :

hue, sell,

! snn/dtVyy Code 3 | Cede !

buwfttHcr

1 t»r irtt.)

' OP)

Co* 3

rafemptiiw)

1 y-P) ! <A-H)

[if private

(Q-W) |

naiuctioo)

! , Income (Mm Qxfev
(S«6Co**wm Q[ urfD*l
1 V»l*s Mb
(SoCoKunm Ci ud DJ)

A =5 1 XflO iv uu

r«4Jo.0m-s»«J5oo
I'SlLWalBi
H “5210JW5 • SJnrinco
w ~nj,wnwi vojcwlcoo
O -A ypii nl

D-DookVitet

R- ilfiOl

O-Slos/U)! . J:. 030,600
K -Sll.Ofl I . 5»,oa>
o-tjoanm

C-il J0I -S3D00
K1 -1 1,000,001 -U.0WV8M:
l -uofloi - s!oo.Mn
Ml -*1.000^01 -5S.0Cfl.CQ0
M - Mar* tftu SSO,OOG.W9
S-Amhtkik

0*55001 -313.(100
H2 *M or* Owa 33 ,0*0,1100
M -1100, Cfll- UJfl.KIB
PI -11.000.301 . SiSJMHOOO

. Vi Hit MttHM Ca
(SwCdlnffl* CI)

X -Cell pul Em* Ontjr)

T*tt«fcM«ker

1104

FINANCIAL DISCLOSURE REPORT

N*n» of F*ri»a Rrperttoe

' Data at Rapoii

Page 5 of 6

Lfwts, Wilma A.

03/M/2011

VIIL ADDITIONAL INFORMATION OR EXPLANATIONS.

"FINANCIAL DISCLOSURE REPORT

Numt of hmn HrporClaf

DUt of Report

Page 6 of 6

Lewis, Wilma A.

03*14/2011

IX. CERTIFICATION.

I certify that *n rnformatloA gNtu above (Including teforrnirton paHalrbt la myspousa and Kiln«r or dependent children, If say) b
attorn te, trot, and complete to the b«*4 of roy knowledge oad betkf, *nd (bat any in forma 0 <m« not reported wu withheld bccauit Jt met applicable rtntatwy
provisions pemltting nOD-dltctoiurc.

! farther certify (hat turned locorae frora avtihlc employment and hotwrert* and the accept ante of gifts wttkb have been reported arc m
compliance with the provisions of 5 U.S.C. app. § Sbl et. 5 U.S.C. § 7353, and Judicial Conference regulaHnni.

Signature

NOTRi ANY INDTVIIKJAJL WHO KNOW1NCLY AND WILTULLY FAI-SIFIES OR PARS TO FILE nits ItErOnr MAY BE SUBJECT TO CIVIL
AND CRIMINAL SANCTIONS (5 VSXL app. § I W)

1

HUNG INSTRUCTIONS

Mail signed original and 3 additional copies to:

Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301

One Columbus Circle, N.E.

Washington, D.C. 20344

1105

FINANCIAL STATEMENT
NET WORTH

Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank
accounts, real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts,
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate members of your
household.

1106

FINANCIAL STATEMENT
NET WORTH SCHEDULES

Real Estate Owned

Personal residence #1 $ 501,390

Personal residence #2 1,435,220

Total Real Estate Owned $ 1,936,610

Thrift Savings Plan

USPS Federal Credit Union IRA

PIMCO Total Return Instl Fund

CNI Charter Prime Money Market Fund -Inst,

Vanguard Prime Money Market Fund -Inst.

Total Retirement Holdings

$241,017
11,765
364,285
13,533
7,760
$ 638,360

Real Estate Mortgages Payable

Personal residence #2 $ 829,591

Total Real Estate Mortgages Payable $ 829,591

2

1107

AFFIDAVIT

I, Wilma Antoinette Lewis , do swear that the information
provided in this statement is, to the best of my knowledge, true
and accurate.

(NOTARY)

District of Columbia: SS
Subscribed and sworn to before mo, in my presence,
tuts 7 <ii«»olCQ2

32s

toonvniutorfaflm

•Ml,

-§)Q]L

I Bekeri, Notary Public. D.C.
i October 31. 2015.

1108

STATEMENT OF MAJOR GENERAL MARILYN A. QUAGLIOTTI,

USA (Ret.], NOMINEE TO BE DEPUTY DIRECTOR FOR SUPPLY

REDUCTION, OFFICE OF NATIONAL DRUG CONTROL POLICY

Major Quagliotti. Thank you, Senator and Ranking Member
Grassley. It’s an honor to be here today as President Obama’s
nominee for Deputy Director for supply reduction at the Office of
National Drug Control Policy.

I have only one person to introduce, my husband of 30 years,
Greg Quagliotti. He’s the guy sitting back there with the 82nd Air-
borne Division pin on today.

And I would like to acknowledge the many friends around the
world who sent notes and well wishes and who wanted to be here
today, but could not because they remain on active duty.

Thank you.

Senator Klobuchar. Very good. Thank you very much. Thank
you, all of you.

I’m going to turn it over to Senator Grassley to first ask some
questions.

Senator Grassley. Mr. Green, have you ever tried a case in Fed-
eral court? Have you ever appeared in Federal court?

Mr. Green. No, I’ve not tried a case in Federal court.

Senator Grassley. Your Senate questionnaire also states that
less than 1 percent of your practice has been in civil proceedings.
How are you prepared to handle civil matters in Federal court?

Mr. Green. The civil work that I did, Senator, was with Morris
& Morris prior to joining the District Attorney’s Office. For the last
24 years I have done extensively — or exclusively criminal work in
the District Attorney’s Office. I think that certainly it will be a
transition that I will have to make, but I’ve proven throughout the
course of my career that I can make transitions and I’ve
transitioned into different areas of law.

For example, when New York State enacted the capital statute
in 1995, I had to make the transition. I was the person designated
to get up to speed on capital prosecutions, lead the office, and in
fact wound up teaching attorneys around the State how to pros-
ecute capital cases. So this will clearly be a transition, but I think
my record shows that given my work ethic and given my ability,
I’ll be able to make that transition.

Senator Grassley. A minority of the ABA Standing Committee
found you Not Qualified for the position. Tell the Committee,
please, about your background and experience that make you quali-
fied to sit as a Federal District Court Judge.

Mr. Green. Certainly. I started my career working at Morris &
Morris, doing mainly plaintiffs’ personal injury work and real es-
tate work. It was a very short period of time that I was there. I
joined the District Attorney’s Office, and for the last 24 years have
been doing almost exclusively criminal litigation. I’ve tried about
110 felony cases. In addition to that, I’ve tried hundreds of mis-
demeanor cases. I continue to try cases. I’ve been the District At-
torney for the last 8 years and have continued to try the major
high-profile cases in our office during that time.

I’ve spent the bulk of my 24 years as an attorney in court, trying
major cases, litigating. I think that that experience — through that
experience I know what it takes to be a good judge in a case. I

1109

know the difference a good judge can make. I’ve had the oppor-
tunity to see the qualities that judges exhibit that help make sure
that justice is done in particular cases. I think that litigation expe-
rience will clearly help me make the transition.

I think the other thing that will help me make the transition is,
as a prosecutor, I’m not just an advocate. Clearly I am an advocate
and that’s different than the role of a judge, but I’m also tasked
with the responsibility of seeking justice. And for the last 24 years,
I’ve done that. While the work that I do seeking convictions may
get more publicity, there are many occasions when doing justice re-
quires me or my assistants to dismiss cases or make decisions not
to bring charges because that’s just. And I think that that experi-
ence will also help me make the transition.

Senator Grassley. You served as a member of the New York
Commission on Sentencing Reform. In a New York Law Journal ar-
ticle you were cited as supporting the proposition that non-violent,
drug-addicted offenders should be sent into treatment instead of
prison, so long as it does not jeopardize humans’ public safety.
Would you please explain this idea to the Committee?

Mr. Green. Certainly. I did serve as a member of the Sentencing
Reform Commission. I was one of 11 members. There was some
very vigorous debate on the commission with regard to where New
York should go with their sentences and with their legislation, par-
ticularly in the area of the drug legislation.

I tried to advocate for positions that I felt struck an appropriate
balance between providing treatment for people in the criminal jus-
tice system that needed treatment, but also making sure that it
was done in a way that did not jeopardize public safety. There were
some parts of the Sentencing Commission’s recommendations that
I agreed with and I felt struck that balance appropriately. There
were other parts that I disagreed with and felt that they did not
strike that balance and that they did not adequately provide for
public safety.

Senator Grassley. As a prosecutor, what has been your record
on prosecuting non-violent drug offenders, particularly focusing on
those charged with use or possession as opposed to distribution?

Mr. Green. I think the first thing I would say is that sometimes
I think it’s a misnomer to say “non-violent” drug crimes because I
think if you just look at the crime itself and the label that you put
on it, it doesn’t tell the whole story. I think that as a prosecutor,
you have to look behind each case and look at the person you’re
dealing with, look at the record, and try and figure out if this is
someone who is a user who’s never engaged in violence before, is
not posing a risk to the community as opposed to, is this someone
who is involved in, for example, gang activity, drug sales.

Even if the charge they’re arrested for is a possession charge, you
know, are they someone who poses a significant danger to the com-
munity? That’s what I’ve tried to do as a prosecutor, and on occa-
sions where I feel with drug possession cases, that we have some-
one who can safely be put into drug treatment without jeopardizing
the community, I’ve certainly supported that position at times. In
other cases where I felt that we had an individual with charges
pending who posed a significant danger to the community, I’ve ad-
vocated that that person be incarcerated to protect the community.

1110

Senator Grassley. My last question. The previous New York
Journal that I referred to quoted you as stating that “both prosecu-
tors and judges should play a meaningful role in who gets placed
into treatment”. You’re a board member of Huther-Doyle Memorial
Institute, a not-for-profit agency that provides addiction treatment
and recovery services to drug and alcohol addicts.

Do you see any conflict of interest with your current role as Dis-
trict Attorney where you’ll recommend treatment in your position
as a board member for the institute, an institution providing treat-
ment services, and presumably receiving payment for those serv-
ices?

Mr. Green. I do not see any conflict. If there’s a particular issue
that came up that I felt posed a conflict I would recuse myself.

In terms of the article that you referenced, maybe you can re-
phrase that part of the question. I’m sorry, I got focused on the
Huther & Doyle part.

Senator Grassley. I will state the whole question again. Do you
see any conflict of interest with your current role as District Attor-
ney where you recommend treatment in your position as board
member for the institute, an institution which provides treatment
service and presumably receiving payments for those services?

Mr. Green. First of all, our office is not involved in terms of
making payments. We certainly have a role in recommending or op-
posing someone being put into treatment. As to the first part of
your question where you pointed out that in some instances I felt
that prosecutors and judges should have a meaningful role, one of
the things that I advocated for throughout the Sentencing Commis-
sion proceedings was on what I felt were serious drug felony cases,
people who in my community were involved in drug sales, many
times were gang members, people that posed a risk to the commu-
nity.

I felt that on those types of cases, prosecutors shouldn’t be cut
out of the equation. I felt prosecutors had some information, some-
times information that judges don’t have, and sometimes informa-
tion that’s very difficult to share on the record. And in certain in-
stances I felt members of the Sentencing Commission were trying
to push legislation that would cut prosecutors out of that decision-
making process and I was opposed to that.

As to the Huther-Doyle part of the question, no, I don’t see any
conflict. I see my role on the board, and my role on the board has
been where I can, to help make sure that Huther-Doyle, and frank-
ly other treatment agencies, are aware of the needs of the criminal
justice system and are in a position to respond to the needs of the
criminal justice system when judges see fit to refer people.

Senator Grassley. Thank you, Mr. Green.

Thank you, Madam Chairman.

Senator Klobuchar. Thank you very much, Senator Grassley.
And just to confirm, Mr. Green, the majority of the ABA found you
qualified for this position. Is that right?

Mr. Green. That’s correct. Thank you, Senator.

Senator Klobuchar. OK. Very good.

And I just thought I’d ask a general experience — a general ques-
tion of all of you. I just was noting that you all have decades of
experience under your belt. That’s why I said the word “experi-

1111

ence”. And I thought if you could just each go, the first three of
you, go through your — what you describe as your judicial tempera-
ment and what you think would make you a good judge.

Ms. Marmolejo.

Ms. Marmolejo. Thank you, Senator, for the question. Thank
you for the question, Senator. I have been fortunate in that I have
grown up in the Federal system. My first job out of law school was
working as an assistant Federal public defender for a couple of
years, and then I worked as a Federal prosecutor for over 8 years.
And I believe that during this time my colleagues would describe
me as a person who is not only fair, but who possesses a calm and
even-tempered demeanor.

And I believe the judges should, in fact, possess a calm and even-
tempered demeanor, and that’s what I would hope to bring to the
bench, along with a strong commitment to follow the law in every
case and a commitment to approach each case with an open mind,
without pre-judging any situation, and to truly give litigants their
day in court.

Senator Klobuchar. Very good.

Mr. Green.

Mr. Green. Thank you, Senator. As District Attorney, I think I
find myself every day in many pressure-packed situations and I al-
ways pride myself on the fact that I am calm as I do my job, I rea-
son through decisions, and I think people respect the work that I
do. As a judge, I think that those qualities would serve me well.
I think it’s important that a judge sets the tone for his or her court-
room, and I would do that through my work ethic, through the
quality of my work, and through the dignity and the respect that
I show for all parties that appear in my courtroom.

In terms of the work itself, I would be the type of judge who, in
finding the facts, would make sure to convey to all of the litigants
that I understand their position. Once I found the facts, I would
apply the law as it is, whether it’s from the Constitution, or stat-
utes, or Supreme Court, or Second Circuit cases that I would be
bound to follow, and I would try and render decisions promptly as
possible because I believe all parties, particularly parties in Fed-
eral court, are entitled to justice that’s not only appropriate, but
also prompt.

Senator Klobuchar. Very good. Thank you.

And Ms. Lewis.

Ms. Lewis. Thank you, Senator. I believe during the course of my
professional career I’ve had the opportunity to perform in a number
of different roles, as advocate, as impartial decisionmaker, and in
particular as the Inspector General of the Department of the Inte-
rior, and as the U.S. Attorney, as counselor, in an in-house capacity
of the Department of the Interior, indeed, as teacher as I served
as an adjunct faculty member of the George Washington University
Law School in terms of — with respect to trial advocacy matters.

Throughout the course of that career I believe I have developed
the kinds of skills, and indeed the temperament, that would hold
me in good stead as a Federal District Judge. I believe I have a
very strong commitment to public service, I think as demonstrated
by my record. I believe I would be fair, but firm. I listen carefully
to all different perspectives before making decisions, and indeed

1112

like to hear the opposite perspective to the direction that I am in-
clined to go.

So I believe I would have that as an attribute as well as a judge.
I believe I would set a tone for the courtroom. I would strive to do
that, in which everyone has the opportunity, all the litigants have
their day in court, and to have a full and fair opportunity to be
heard. I would be strictly adhering to the rule of law and the prece-
dent, and I think throughout my career I have demonstrated that
as well. So I think those skills, those qualities would be the ones
that I would seek to bring to the bench.

Senator Klobuchar. Thank you very much.

General Quagliotti, just a few questions of you. Could you de-
scribe what your job is for everyone that you are being nominated
for, the Director for Supply Reduction? I can guess, but can you de-
scribe it for all of us?

General Quagliotti. Yes, Senator. I’ll be happy to. In the Office
of National Drug Control Policy there are three deputies: one is for
supply reduction, which would be the one that I am being nomi-
nated for; one is for demand reduction; and one is for State, local
and tribal collaboration and coordination. So I would be nominated
for Supply Reduction.

Senator Klobuchar. OK. Very good.

And what’s the major focus then? It’s on making sure that we re-
duce our supply of illegal drugs? Is that right?

General Quagliotti. Correct. And really the portfolio for this of-
fice is mainly an international portfolio, so dealing with countries
that are outside the United States which are trying to reduce drug
trafficking organizations within their own country.

Senator Klobuchar. Very good.

And in Panama you spent 2 years as a Brigade Commander,
working to stop the flow of illegal drugs into the U.S. And you also
advised the Colombia army on command and control issues related
to illegal drugs. Can you tell us about this experience and how that
will help you in this job?

General Quagliotti. Yes, Senator. You know, I’ve traveled
across the world throughout my 32 years as an active duty soldier,
spent a lot of time, 9 years, overseas. The 2 years that really im-
pressed me the most was the time that I spent in Panama as Bri-
gade Commander.

And during that period of time my organization deployed over 50
times into Central and South America, and during those deploy-
ments we were actually supporting projects that were sponsored by
the State Department and really the responsibility of SouthCom,
which is the military command in that region. We were supporting
emerging democracies because at that time, which was 1995 to
1997, we still had insurgency movements in Central and South
America.

So I really became familiar with the effect that drugs can have
on a democracy, on the corrupting effects that it can have with the
judicial system, the military, law enforcement, and even in the
daily lives of the people who live in the countries. So I believe that
I have the international experience, the interagency experience to
negotiate, collaborate, and work with Central and South America,

1113

as well as other countries, to reduce the flow of drugs into the
United States.

Senator Klobuchar. Very good.

And I also wanted to congratulate you on becoming the first fe-
male signal soldier to obtain the rank of Major General.

General Quagliotti. Thank you, Senator.

[The biographical information follows.]

1114

UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY

QUESTIONNAIRE FOR NON-JUDICIAL NOMINEES

PUBLIC

1. Name : State full name (include any former names used).

Marilyn Ann Quagliotti, Maiden Name: Marilyn Ann Hathom

2. Position : State the position for which you have been nominated.

Deputy Director for Supply Reduction, Office of National Drug Control Policy

3. Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.

9405 Meadow Crossing Way, Fairfax Station, Va. 22039

4. Birthplace : State date and place of birth.

9/30/1953 Ft. Walton Beach, Florida

5. Education : List in reverse chronological order each college, law school, or any other
institution of higher education attended and indicate for each the dates of attendance,
whether a degree was received, and the date each degree was received.

National War College - Master of Science Degree (non-accrcditcd) National

Security Strategy, May 1993- June 1994

Louisiana State University - Bachelor of Science Degree - Health Recreation and

Physical Education, June 1971 -Dec 1974

6. Employment Record : List in reverse chronological order all governmental agencies,
business or professional corporations, companies, firms, or other enterprises,
partnerships, institutions or organizations, non-profit or otherwise, with which you have
been affiliated as an officer, director, partner, proprietor, or employee since graduation
from college, whether or not you received payment for your services. Include the name
and address of the employer and job title or description.

June 2010 - Present - Associate
Durango Group, Inc
1 Copley Parkway, Suite 200
Box 23, Morrisville NC 27560

January 2010 - Present - Technical Advisory Board Member
Acelsior, Inc

1200 G Street NW Suite 550
Washington, D.C. 20005

March 2010 - Present - Volunteer Committee Co Chair for
Community Foundation for Northern Virginia
8283 Greensboro Drive

1115

McLean, Va. 22102

June 2009 - Present - Independent Consultant, Self Employed
9405 Meadow Crossing Way
Fairfax Station, Va. 22039

Dec 2009 - June 2010 - Independent Contractor
Deloitte Consulting, LLP
1700 Tyson’s Blvd.

McLean, Va. 22102

Sept 2007 - May 2009 - Senior Manager at Deloitte Consulting, LLP,

Suite 210
North Fairfax Dr.

Arlington, Va. 22203

Aug 1 975- May 2007 - Officer in U. S. Army

• August 1975- April 1976 -Signal Officer

• May 1976 - June 1977 - Operations Officer and Commander

• June 1977- January 1978 - Instructor

• January 1978- October 1978 - Aide-dc-Camp to Commanding General

• October 1978- February 1980 - Platoon Leader

• February 1980 - March 198 1 - Commander

• March 1981 - September 1981 - Student

• September 1 98 1 - August 1 982 - Plans and Engineer Officer

• August 1982 - June 1983 - S-2/3(Inte)ligence/Operations)

• June 1983-May 1986 - Radio Officer

• May 1986-June 1987 - Student

• June 1987-November 1988- Fielding Officer

• November 1988-May 1990- Executive Officer

• May 1990- May 1991 - S-3 (Operations)

• May 1991 - May 1993 - Commander

• May 1993-June 1994 -Student

• June 1994- June 1995- Staff Officer

• June 1995- May 1997- Commander

• May 1997 - July 1998 - Deputy Director for Command, Control,
Communications and Computer Systems

• July 1998 - June 2000 - Vice Director for Command, Control,
Communications and Computer Systems

• June 2000-March 2003 - Commanding General

• March 2003 - October 2003 - Deputy Director for Operations

• November 2003- April 2007 - Vice Director

7. Military Service and Draft Status : Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received, and whether you have registered for
selective service.

1975- 2007 - U.S. Army Officer
Rank at Retirement - Major General
Discharge- Honorable

1116

Not required to register for Selective Service

8. Honors and Awards : List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.

Distinguished Service Medal

Defense Superior Service Medal (with Oak Leaf Cluster)

Legion of Merit

Meritorious Service Medal (with 4 Oak Leaf Clusters)

Army Commendation Medal (with 2 Oak Leaf Clusters)

Army Achievement Medal (with Oak Leaf Cluster)

Parachutist Badge

Joint Staff Identification Badge

Army Staff Identification Badge

9. Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you arc or have been a member, and give the
titles and dates of any offices which you have held in such groups.

N/A

10. Bar and Court Admission : N/A

a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.

b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any
lapse in membership. Give the same information for administrative bodies that
require special admission to practice.

11. Memberships :

a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 9 or 10 to which
you belong, or to which you have belonged, since graduation from law school.
Provide dates of membership or participation, and indicate any office you held.
Include clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.

May 1989 - Present - Member - Armed Forces Communications Electronics
Association

Feb 1996 - Present- Member - Association of the United States Army
May 1978 (estimate) - Present- Member - Signal Corps Regimental Association
June 2007- Present - Member - Military Officers Association of America
November 2004 - Present - Member - Women’s Memorial Foundation
June 2010 - Present - Member - US Army Women’s Foundation
March 20 10 -Present- Volunteer Committee Co Chair - Northern Virginia
Community Foundation -for the Military Members and Family Fund
Committee

1117

b. Indicate whether any of these organizations listed in response to 1 la above
currently discriminate or formerly discriminated on the basis of race, sex,
religion or national origin either throogh>fbrmat membership requirements or
the practical implementation of membership policies. If so, describe any action
you have taken to change these policies and practices.

To the best of my knowledge, none of these organizations has engaged in
discrimination on the basis of race, sex, religion or national origin.

1 2. Published Writings and Public Statements :

a. List the titles, publishers, and dates of books, articles, reports, and letters to the
editor, editorial pieces, or other published material you have written or edited,
including material published only on the Internet. Supply four (4) copies of all
published material to the Committee.

None.

b. Supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or arc a member. If
you do not have a copy of a report, memorandum or policy statement, give the
name and address of the organization that issued it, the date of the document, and
a summary of its subject matter.

None.

c. Supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.

None.

d. Supply four (4) copies, transcripts or recordings of all speeches or talks delivered
by you, including commencement speeches, remarks, lectures, panel discussions,
conferences, political speeches, and question-and-answer sessions. Include the
date and place where they were delivered, and readily available press reports
about the speech or talk. If you do not have a copy of the speech or a transcript or
recording of your remarks, give the name and address of the group before whom
the speech was given, the date of the speech, and a summary' of its subject matter.
If you did not speak from a prepared text, furnish a copy of any outline or notes
from which you spoke.

1999-2007: Briefing to military members or allies at industry exchanges about
Command and Control challenges for War fighting Forces, Organizational
Changes to Accommodate Information Technology Opportunities, and Future
Operational Advantages of Information Superiority for War fighting Forces.

c. List all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these

1118

interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.

“A Hard-Earned Star *** BR native Marilyn Hathom Quagliotti has risen
to the rank of brigadier general” Sunday Advocate (Baton Rouge, L.A.),
December 31, 2001.

1 also gave an interview to the Military Information Technology Magazine,
a professional Journal for Military Information Technology professionals
in the 2004 timeframe. The story was the featured article of the magazine
and I was on the cover. The on line archives of the magazine only go back
to 2006.

While a Commander in Germany from 2000 to 2003, 1 was also
interviewed by a writer from a German Military Journal. The article was
written focusing on my position as the first woman General Officer
Commander in Europe. I cannot locate a copy of this article.

13. Public Office. Political Activities and Affiliations :

a. List chronologically any public offices you have held, other than judicial
offices, including the terms of service and whether such positions were elected
or appointed. If appointed, please include the name of the individual who
appointed you. Also, state chronologically any unsuccessful candidacies you
have had for elective office or unsuccessful nominations for appointed office.

None,

b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election committee. If you have
ever held a position or played a role in a political campaign, identify the
particulars of the campaign, including the candidate, dates of the campaign,
your title and responsibilities.

None.

14. Legal Career: Answer each part separately. N/A

a. Describe chronologically your law practice and legal experience after
graduation from law school including:

i. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;

ii. whether you practiced alone, and if so, the addresses and dates;

iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.

iv. whether you served as a mediator or arbitrator in alternative dispute
resolution proceedings and, if so, a description of the 10 most significant
matters with which you were involved in that capacity.

1119

b. Describe:

i. the general character of your law practice and indicate by date when its
character has changed over the years.

ii. your typical clients and the areas at each period of your legal career, if
any, in which you have specialized.

c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.

i. Indicate the percentage of your practice in:

1 . federal courts;

2. state courts of record;

3. other courts;

4. administrative agencies

ii. Indicate the percentage of your practice in:

1. civil proceedings;

2. criminal proceedings.

d. State the number of cases in courts of record, including cases before
administrative law judges, you tried to verdict, judgment or final decision
(rather titan settled), indicating whether you were sole counsel, chief counsel, or
associate counsel.

i. What percentage of these trials were:

1. jury;

2. non-jury.

e. Describe your practice, if any, before the Supreme Court of the United States.
Supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any
oral argument transcripts before the Supreme Court in connection with your
practice.

15. Litigation : Describe the ten (10) most significant litigated matters which you personally
handled, whether or not you were the attorney of record. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give a capsule summary of
the substance of each case. Identify the party or parties whom you represented; describe
in detail the nature of your participation in the litigation and the final disposition of the
case. Also state as to each case: N/A

a. the date of representation;

b. the name of the court and the name of the judge or judges before whom the case
was litigated; and

c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.

1120

16. Legal Activities : Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities. List
any client(s) or organization(s) for whom you performed lobbying activities and describe
the lobbying activities you performed on behalf of such client(s) or organizations(s).
(Note: As to any facts requested in this question, please omit any information protected
by the attorney-client privilege.)

N/A

17. Teaching : What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, provide four (4) copies to the committee.

None.

1 8. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Describe the arrangements you have made to be compensated in the future
for any financial or business interest.

Federal Government Military Pension - $122,556 (1 June 2007-end of life)

Chase Bank CD’S - $56,548 (begin withdrawal in 2020)

Vanguard Prime Money Market IRA- $28,217 (begin withdrawal in 2020)
Vanguard Life Strategy IRA - $44,479 (begin withdrawal in 2020)

19. Outside Commitments During Service : Do you have any plans, commitments, or
agreements to pursue outside employment, with or without compensation, during your
service? If so, explain.

No.

20. Sources of Income : List sources and amounts of all income received during the calendar
year preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, licensing fees, honoraria, and other items
exceeding $500 or more (if you prefer to do so, copies of the financial disclosure report,
required by the Ethics in Government Act of 1978, may be substituted here). Substitute
Financial Disclosure Form

Financial Disclosure Form attached.

21. Statement of Net Worth : Please complete the attached financial net worth statement in
detail (add schedules as called for).

22. Potential Conflicts of Interest :

a. Identify the family members or other persons, parties, affiliations, pending and
categories of litigation, financial arrangements or other factors that arc likely to
present potential conflicts-of-interest when you first assume the position to

1121

which you have been nominated. Explain how you would address any such
conflict if it were to arise.

In connection with the nomination process, 1 have consulted with the Office of
Government Ethics and the Office of National Drug Control Policy’s designated
agency ethics official to identify potential conflicts of interest. Any potential
conflicts of interest will be resolved in accordance with the terms of an ethics
agreement that I have entered into with ONDCP’s designated agency ethics
official.

b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.

In connection with the nomination process, 1 have consulted with the Office of
Government Ethics and the Office of National Drug Control Policy’s designated
agency ethics official to identify potential conflicts of interest. Any potential
conflicts of interest will be resolved in accordance with the terms of an ethics
agreement that I have entered into with ONDCP’s designated agency ethics
official.

23. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar

Association’s Code of Professional Responsibility calls for “every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving the disadvantaged.” Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each. If you are not an
attorney, please use this opportunity to report significant charitable and volunteer work
you may have done.

I am currently a volunteer on two projects.

The first project began on November 2009 and continues to the present. It is the
Women in Leadership Oral History project which is sponsored by the Women’s
Memorial Foundation. This project requires 6 hours of my time per week. This
project is not for the disadvantaged per se. The purpose of the project is to record
leadership experiences of Women in the Military with the intent to pass on their
collective wisdom to younger women.

The second project, I am the Co Chair for the Community Foundation for
Northern Virginia. This project began in March 2010 and continues to the
present. So far, this project has required less 1 hour a week, of my time. This
project involves connecting the Northern Virginia Community Foundation, who
desires to establish a fond to assist military members and families, with military
organizations and charities that support the military members and their family.

The Foundation has raised over $200,000 for this cause. (These funds were raised
prior to the nominee’s assumption of responsibilities.)

1122

Marilyn Quagliotti

FINANCIAL STATEMENT

- NET- WOP.TH -

Provide a complete, current financial net worth statement
which itemizes in detail all assets (including bank accounts,
real estate, securities, trusts, investments, and other
financial holdings) all liabilities (including debts, mortgages,
loans, and other financial obligations) of yourself, your
spouse, and other immediate members of your household.

1123

Retirement Accounts Schedule:

Retirement CD’S (M. Quagliotti) $56,548

Retirement CD (Joint Account) $26,581

Vanguard Prime Money

Market IRA (F) $28,214

Vanguard Life Strategy

Fund [RA (F) $44,439

Vanguard Tax Exempt

Money Market IRA(S) $79,860

QinetiQ North America

Operations 40 1 k Plan (S) $47,637

Real Estate Schedule:

Residence |

[Wells Fargo]

Value: $593,790
Mortgage: $178,775

Vacation Home

[SunTrust Mortgage]

Value: $599,000
Mortgage: $402,613

AFFIDAVIT

i. //rutM.Y/J f). Quaet'OTt ,

that the information provided in this statement is,
of my knowledge, true and accurate.

do swear
to the best

/Wntca /

Tdatet

(NOTARY)

1124

May 4, 2011

The Honorable Patrick Leahy
Chairman

Committee on Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington. D.C. 20510

The Honorable Charles Grassley

Ranking Member

Committee on Judiciary

United States Senate

152 Dirksen Senate Office Building

Washington, D.C. 205 10

Dear Chairman Leahy and Senator Grassley:

1 am writing to amend my response to question 12 (c) of the of the Judiciary Committee
questionnaire that I submitted in connection with my nomination to be Deputy Director for
Supply Reduction within the Office of National Drug Control Policy. Since submitting the
questionnaire, it has come to my attention that this testimony was submitted on my behalf in
2004 before the House Armed Services Committee. 1 did not testify at this hearing, but it was
submitted in my official capacity.

Thank you again for your consideration of my nomination.

Marilyn A. Quagliotti

1125

Senator Klobuchar. Very good. I note that three of our four
nominees are women. You broke the glass ceiling, Mr. Green, to be
included in this group.

[Laughter.]

Senator Klobuchar. In any case, I want to congratulate all of
you on a job well done. I don’t think we have any remaining ques-
tions, although Senators are welcome to submit questions for the
record. The record will remain open for 1 week.

I wish you all well. Thank you and all of your extended families
for being here, and those of them watching on webcast. So, have
a very good day.

With that, this hearing is adjourned.

[Whereupon, at 3:43 p.m. the hearing was adjourned.]

[Questions and answers and submissions for the record follow.]

1126

QUESTIONS AND ANSWERS

Responses of Michael C. Green

Nominee to be United States District Judge for the Western District of New York
to the Written Questions of Senator Chuck Grassley

1. Given your work on the New York Commission, and considering your experience
with criminal law, what is your familiarity with the Federal Sentencing Guidelines?

Response: I am familiar with the Federal Sentencing Guidelines from several different
sources. First, as District Attorney I have worked with the United States Attorney's
Office on a regular basis to determine whether cases can be prosecuted most effectively
in state or federal court. This analysis included an examination of the applicable
sentencing provisions in each jurisdiction, which in federal court required review of the
Federal Sentencing Guidelines. Also, as a member of the New York Sentencing
Commission, I studied the Federal Sentencing Guidelines as a reference in making
recommendations for New York’s sentencing scheme. Finally, 1 have been studying
federal law, including the Federal Sentencing Guidelines, in preparation for my work as a
federal district court judge, in the event I am confirmed by the United States Senate.

a. What was your position, while serving on the New York Commission,
regarding mandatory minimum sentencing?

Response: As a member of the Commission 1 advocated for mandatory minimum
sentences for those offenders convicted of crimes which threaten the safety of our
communities.

b. If confirmed, under what circumstances would you depart from the Federal
Sentencing Guidelines?

Response: Understanding that the Supreme Court in United States v. Booker .

543 US 220 (2005), held that the Federal Sentencing Guidelines are advisory, not
mandatory, if confirmed as a district court judge, 1 would nevertheless give
substantial deference to the applicable sentencing ranges calculated pursuant to
the Guidelines. I would only consider departing from the Guidelines in an
individual case when 1 felt a departure was warranted based upon the applicable
statutory and decisional law. For example, I would consider a departure pursuant
to 18 U.S.C. § 3553(e) when the government makes a motion for a departure
based upon substantial cooperation by the defendant. In all cases, 1 would be
strongly guided by the provisions of the Federal Sentencing Guidelines and any
relevant decisions of the United States Supreme Court and Second Circuit Court
of Appeals.

2. Do you believe it is proper for a judge, consistent with governing precedent, to strike
down an act of Congress that it deems unconstitutional? If so, under what
circumstances, and applying what factors?

Response: Yes, I believe it is proper for a judge, consistent with governing precedent, to
strike down an act of Congress. Such a decision would be proper when the judge

1127

determines, after careful consideration, that such act exceeds Congressional authority as
articulated in the Constitution and in relevant Supreme Court precedent.

3. What is the most important attribute of a judge, and do you possess it?

Response: I believe the most important attribute of a judge is to be able to promptly
decide cases on the narrow issues presented after making fair and impartial findings of
facts, identifying and apply controlling statutory and case law, and applying that law to
the facts of the particular case. 1 believe I possess this ability.

4. Please explain your view of the appropriate temperament of a judge. What
elements of judicial temperament do you consider the most important, and do you
meet that standard?

Response: A judge should treat everyone with dignity and respect; should act in a
manner that affords the federal courts and federal law the respect they deserve; and,
should be firm in managing the docket, including ensuring that the decorum of the court
is always maintained and that all decisions are prompt and just. I believe that I possess
and have demonstrated that I possess the qualities that will ensure that I conduct myself
in this manner should I have the honor of being confirmed as a federal district court
judge.

5. In general. Supreme Court precedents are binding on all lower federal courts and
Circuit Court precedents are binding on the district courts within the particular
circuit. Are you committed to following the precedents of higher courts faithfully
and giving them full force and effect, even if you personally disagree with such
precedents?

Response: Yes.

6. At times, judges are faced with cases of first impression. If there were no controlling
precedent that dispositively concluded an issue with which you were presented, to
what sources would you turn for persuasive authority? What principles will guide
you, or what methods will you employ, in deciding cases of first impression?

Response: I would start by finding the facts in a fair and objective manner. I would then
turn to an analysis of the language of the statute or provision of the Constitution at issue,
and if necessary and available, any legislative history that sheds light on the meaning of
the statute. I would also look to the decisions of the United States Supreme Court, the
Second Circuit Court of Appeals, and the other Circuit Courts in which these counts have
decided similar cases, for further guidance in addressing a case of first impression. I
would attempt to decide the issue as narrowly as possible consistent with the language of
the Constitution or statute in question, considering any relevant precedent.

1128

7. What would you do if you believed the Supreme Court or the Court of Appeals had
seriously erred in rendering a decision? Would you apply that decision or would
you use your own judgment of the merits, or your best judgment of the merits?

Response: If I am confirmed as a district court judge, I would follow all controlling law
regarding any issue that came before me as set forth by the United States Supreme Court
and the Second Circuit Court of Appeals without regard for my personal opinions.

8. As you know, the federal courts are facing enormous pressures as their caseload
mounts. If confirmed, how do you intend to manage your caseload?

Response: As a judge I would set an example for all parties in terms of my work ethic
and level of preparation. I would make sure criminal cases are handled according to the
applicable speedy trial standards. I would utilize scheduling orders and be firm in
holding parties to those orders to facilitate the prompt disposition of cases. I would use
the resources available to me, including magistrate judges, and effective methods
developed by other judges in my district, including mediation where appropriate, to help
manage the caseload. 1 would conduct court proceedings in a fair but efficient manner
and make decisions promptly.

9. Do you believe that judges have a role in controlling the pace and conduct of
litigation and, if confirmed, what specific steps would you take to control your
docket?

Response: I believe judges play a significant role in controlling the pace and conduct of
litigation; and, if confirmed, I would take the steps outlined in my response to question 8
to control my docket.

10. Please describe with particularity the process by which these questions were
answered.

Response: 1 received these questions from the Department of Justice via email on the
evening of May 3 1 , 20 1 1 . I prepared draft responses to the questions and then reviewed
them with the Justice Department. I then finalized my answers and emailed them to the
Justice Department for submission to the Judiciary Committee.

1 1. Do these answers reflect your true and personal views?

Response: Yes.

1129

Responses of Michael C. Green

Nominee to be United States District Judge for the Western District of New York
to the Written Questions of Senator Tom Coburn, M.D.

1. Some people refer to the Constitution as a “living” document that is constantly
evolving as society interprets it. Do you agree with this perspective of constitutional
interpretation?

Response: No, I do not agree that the Constitution is constantly changing as society
interprets it. While courts may be called on to apply the Constitution to new or different
factual scenarios, the only way the Constitution itself changes is by a Constitutional
Amendment.

2. Justice William Brennan once said: “Our Constitution was not intended to preserve
a preexisting society but to make a new one, to put in place new principles that the
prior political community had not sufficiently recognized.” Do you agree with him
that constitutional interpretation today must take into account this supposed
transformative purpose of the Constitution?

Response: No.

3. Do you believe judicial doctrine rightly incorporates the evolving understandings of
the Constitution forged through social movements, legislation, and historical
practice?

Response: As a district court judge, I believe I would be bound by the text of the
Constitution and the relevant United States Supreme Court and Second Circuit Court of
Appeals cases interpreting the Constitution. 1 do not believe the Constitution changes
through social movements, legislation, and historical practice.

4. Is any transaction involving the exchange of money subject to Congress’s
Commerce Clause power?

Response: The United States Supreme Court has made it clear that Congressional power
under the Commerce Clause is not absolute and is subject to limitation. As a district
court judge l would follow and be bound by Supreme Court decisions such as United
States v. Lonez . 514 U.S. 549 (1995) and United States v. Morrison . 529 U.S. 598 (2000)
and the relevant decisions of the Second Circuit Court of Appeals in deciding cases
involving challenges to Congress’s power under the Commerce Clause.

5. The U.S. Supreme Court held in District of Columbia v. Heller, 554 U.S. 570 (2008),
that the Second Amendment of the United States Constitution “protects an
individual right to possess a firearm unconnected to service in a militia, and to use
that arm for traditionally lawful purposes, such as self-defense within the home.”

As Justice Scalia’s opinion in Heller pointed out. Sir William Blackstone, the
preeminent authority on English law for the Founders, cited the right to bear arms
as one of the fundamental rights of Englishmen. Leaving aside the McDonald v.

1

1130

Chicago decision, do you personally believe the right to bear arms is a fundamental
right?

Response: The United States Supreme Court, in McDonald v. Chicago . 130 S. Ct. 3020,
3042 (20 1 0), held that the right to bear arms is a fundamental right, and 1 have no
personal opinions or beliefs that would interfere with my ability to follow the precedent
of the Supreme Court on this issue.

a. Do you believe that explicitly guaranteed substantive rights, such as those
guaranteed in the Bill of Rights, are also fundamental rights? Please explain
why or why not.

Response: The United States Supreme Court held in McDonald v. Chicago . 1 30
S. Ct. at 3036, that for purposes of determining if rights such as those guaranteed
in the Bill of Rights apply against the states under the due process clause of the
fourteenth amendment, most, but not all, of the rights contained in the first eight
amendments are fundamental rights that apply against the States. I have no
beliefs that would interfere with my ability to follow the precedent of the
Supreme Court on this issue.

b. Is it your understanding of Supreme Court precedent that those provisions of
the Bill of Rights that embody fundamental rights are deemed to apply
against the States? Please explain why or why not.

Response: Yes, as explained in the answer to 5.a. above.

c. The Heller Court further stated that “it has always been widely understood
that the Second Amendment, like the First and Fourth Amendments, codified
a pre-existing right.” Do you believe that the Second Amendment, like the
First and Fourth Amendments, codified a pre-existing right? Please explain
why or why not.

Response: I believe the United Stales Supreme Court, in Heller v. District of
Columbia . 554 U.S. 570(2008), held that tire Second Amendment, like the First
and Fourth Amendments, codified pre-existing rights, and 1 have no beliefs that
would interfere with my ability to follow the precedent of the Supreme Court on
this issue.

6. Some have criticized the Supreme Court’s decision in Heller saying it “discovered a
constitutional right to own guns that the Court had not previously noticed in 220
years.” Do you believe that Heller “discovered” a new right, or merely applied a
fair reading of the plain text of the Second Amendment?

Response: I believe the United States Supreme Court’s decision in Heller was based on
the text of the Second Amendment.

a. Similarly, during his State of the Union address, the President said the
Supreme Court’s decision in Citizens United v. FEC, 558 U.S. (2010),

2

1131

“reversed a century of law” and others have stated that it abandoned “100
years of precedent.” Do you agree that the Court reversed a century of law
or 100 years of precedent in the Citizens United decision? Please explain why
or why not.

Response: The United States Supreme Court, in Citizens United v, FEC . 130 S.
Ct. 876 (2010), pointed out that it was faced with conflicting lines of precedent,
namely cases predating Austin v. Michigan Chamber of Commerce . 494 U.S, 652
(1990) which prohibited speech restrictions based on a speaker’s corporate
identity, and the post- Austin cases which recognized such restrictions as
constitutional. In reconciling these conflicting lines of cases the Supreme Court
overruled Austin .

7. What limitations remain on the individual Second Amendment right now that it has
been incorporated against the States?

Response: The United States Supreme Court, in Heller v. District of Columbia . 554 U.S.
570 (2008) stated that “[although we do not undertake an exhaustive historical analysis
today of the full scope of the Second Amendment, nothing in our opinion should be taken
to cast doubt on longstanding prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions and qualifications on the
commercial sale of arms”. In McDonald v. Chicago . 130 S. Ct. 3020 (2010), the
Supreme Court reaffirmed this concept.

a. In McDonald v. Chicago , the majority wrote: “We made it clear in Heller that
our holding did not cast doubt on such longstanding regulatory measures as
‘prohibitions on the possession of firearms by felons and the mentally ill,’
‘laws forbidding the carrying of firearms in sensitive places such as schools
and government buildings, or laws imposing conditions and qualifications on
the commercial sale of arms.’”

What if a state passed a law imposing a $2,000 registration fee as a condition
for the commercial sale of a firearm? Without stating how you would rule in
such a case, please explain how you would conduct your analysis to
determine whether the fee violated the Second Amendment right to keep
arms?

Response: If confirmed as a district court judge and faced with an issue as
described in this question, 1 would look to the applicable United States Supreme
Court and Second Circuit case law interpreting the Second Amendment, including
the holdings from Heller and McDonald referred to in the answer to question 7
above, and apply them to the facts of the case before me.

i. To what cases or authorities would you refer? Please be specific.

Response: Please see the response to Question 7.a. above.

3

1132

b. If the New York legislature outlawed the carrying and possession of firearms
on the grounds of hospitals that have psychiatric wards, regardless of
whether the hospital was private, and someone challenged that law on
constitutional grounds in a case that was before you, please explain how you
would conduct your analysis to determine whether that regulation complied
with the Second Amendment’s guarantee of the right to bear arms without
stating how you would rule in such a case. Please be specific as to which
cases and authorities you would refer and what weight you would give them.

Response: If confirmed as a district court judge and faced with an issue as
described in this question, I would look to the applicable United States Supreme
Court and Second Circuit case law interpreting the Second Amendment, including
the holdings from Heller and McDonald referred to in the answer to question 7
above, and apply them to the facts of the case before me.

i. Could a hospital qualify as a “sensitive place?" Why or why not?

Response: Please see the answer to question 7.b. above.

c. Is the Second Amendment limited only to possession of a handgun for self-
defense in the home, since both Heller and McDonald involved cases of
handgun possession for self-defense in the home?

Response: 1 do not believe the Supreme Court holdings in Heller or McDonald
specifically limited the application of the Second Amendment to protect only
possession of a handgun in a home for self-defense.

8. In Roper i>. Simmons, 543 U.S. 551 (2005), Justice Kennedy relied in part on the
“evolving standards of decency” to hold that capital punishment for any murderer
under age 18 was unconstitutional. I understand that the Supreme Court has ruled
on this matter, but do you agree with Justice Kennedy’s analysis?

Response: If confirmed as a district court judge I would be bound by and would follow
the holding of the United States Supreme Court in Roper v. Simmons regardless of any
personal beliefs or opinions I may have on the issue.

a. Do you agree that the Constitution’s prohibition on cruel and unusual
punishment “embodies a principle whose application is appropriately
informed by our society’s understanding of cruelty and by what punishments
have become unusual?”

Response: If confirmed as a district court judge and faced with such a challenge,
1 would apply the United States Supreme Court and Second Circuit Court of
Appeals precedent when considering a claim of cruel and unusual punishment
under the Eighth Amendment.

b. How would you determine what the evolving standards of decency are?

4

1133

Response: Please see the answer to question 8.a. above.

c. Do you think that a judge could ever find that the “evolving standards of
decency” dictated that the death penalty is unconstitutional in all cases?

Response: The Supreme Court has held that the death penalty is not
unconstitutional in all cases and if confirmed as a district court judge I would
have no difficulty following and applying this holding, i believe it would be
improper for a district court judge to hold otherwise in the face of existing
Supreme Court precedent.

d. What factors do you believe would be relevant to the judge’s analysis?

Response: hi light of the answer to question 8.c. above, 1 do not believe any such
analysis would be appropriate for a district court judge.

e. When determining what the “evolving standards of decency” are, justices
have looked to different standards. Some justices have justified their
decision by looking to the laws of various American states, 1 in addition to
foreign law, and in other cases have looked solely to the laws and traditions
of foreign countries. 2 Do you believe either standard has merit when
interpreting the text of the Constitution?

Response: If confirmed as a district court judge, I would interpret the text of the
Constitution based on a reading of the text and any United States Supreme Court
or Second Circuit Court of Appeals cases on point. 1 would not consider the laws
of the states or foreign laws unless 1 was specifically required to do so by the law
as established by the above-mentioned courts.

i. If so, do you believe one standard more meritorious than the other?
Please explain why or why not.

Response: Please see the answer to question 8.e. above. I would only
consider these sources to the extent required and in the manner required by
Supreme Court and Second Circuit precedent.

9. In your view, is it ever proper for judges to rely on foreign or international laws or
decisions in determining the meaning of the Constitution?

Response: If confirmed as a district court judge it would not be proper for me to look to
foreign or international law in interpreting the Constitution or laws of the United States
unless required by Supreme Court and Second Circuit precedent, and if so, only to the
extent required.

Roper v. Simmons, 543 U.S. 551, 564-65.

2 Graham v. Florida , 130 S.Ct. 2011, 2033-34.

5

1134

a. 1$ it appropriate for judges to look for foreign countries for “wise solutions”
and “good ideas” to legal and constitutional problems?

Response: Please see the answer to question 9 above.

b. If so, under what circumstances would you consider foreign law when
interpreting the Constitution?

Response: Please see the answer to question 9 above.

c. Do you believe foreign nations have ideas and solutions to legal problems
that could contribute to the proper interpretation of our laws?

Response: Please see the answer to question 9 above. I believe the laws of the
United States should be interpreted by reference to legal sources within the United
States.

d. Would you consider foreign law when interpreting the Eighth Amendment?
Other amendments?

Response: Please see the answer to question 9 above.

10. You noted in your hearing testimony that you not only prosecute cases, you also
have to “seek justice” and there are “many” occasions when doing justice requires
you to dismiss a case or make a decision not to bring charges because “that’s just.”
Please explain in detail what specific factors you consider when deciding to dismiss a
case or not bring charges.

Response: While every case is different and must be considered individually, the
analysis involves an examination of the facts of the ease in light of the applicable law.

a. Please provide some examples of cases where you decided not to bring
charges or dropped the case and include details about the potential charges
and factors you considered when making your decision.

Response: The three cases that come to mind immediately are People v. Douglas
Wamev . People v. Frank Sterling , and People v. Freddie Peacock . In each of the
cases the defendant was convicted by a jury, Wamey and Sterling of murder, and
Peacock of rape. 1 was not District Attorney, nor was I involved in the original
prosecution of any of the cases. However, during my term as District Attorney
my office uncovered and/or was provided with evidence, including DNA
evidence in all three cases, which after extensive investigation, established that
each defendant was wrongfully convicted. In all three cases I moved, jointly with
the defense, to have the convictions set aside and to have the indictments
dismissed.

b. Did your decision involve empathy towards the perpetrator?

6

1135

Response: No.

c. What role do you believe empathy should play when judges are deciding
cases?

Response: While I believe it is important for a judge to strive to understand the
perspective of all parties in the fact finding part of the process, I believe a judge’s
ultimate decision must be based on an impartial application of the controlling law
to the facts of a case. Sympathy or other feelings for or against a party must play
no part in judicial decision making.

d. Do you believe empathy is an essential ingredient for arriving at just
decisions and outcomes and should play a role in a judge’s consideration of a
case?

Response: Please see the response to lO.c. above.

11. In your testimony, you stated that you often recommended drug treatment rather
than jail time for certain drug-related arrests. Please provide statistics for the
number of drug felony cases in your office disposed of by plea, trial, or other
disposition, since you took over as District Attorney in 2(1(14. Please list each
separately and include the national and statewide averages for each category of
offense as well.

Response: From January 1, 2004, to present 4,135 (73%) drug felony cases prosecuted
by my office have been disposed of by plea, 107 (2%) by trial, and there have been 1,480
(25%) other dispositions. New York State data shows 86% of drug felonies are disposed
of by plea, 1% by trial and 13% by other disposition. National data shows 65% of drug
felony cases are disposed by plea, 2% by trial, and 33% by other disposition. Please note
that these comparisons are approximate and are based on different data sources and
different time frames.

12. Please provide a brief summary of and citation for each case in which you asked for a

sentence for a defendant which was below what was called for by the U.S.

Sentencing Guidelines. Please include the sentencing range called for under the
guidelines, the sentence you requested, and the sentence issued by the judge.

Response: I have personally prosecuted and made sentence recommendations on
thousands of cases in my twenty-four years as a prosecutor. Because all these cases
involved defendants convicted of violating New York State’s criminal statutes, and New
York State crimes have different elements than federal criminal offenses, it is not
possible to accurately compare my sentence recommendations to the Federal Sentencing
Guidelines. New York State has its own sentencing guidelines ( See NY Penal Law
Articles 60 and 70). 1 have never recommended a sentence below the sentencing range
authorized by New York law; and to the best of my knowledge, a judge has never
imposed a sentence below the range authorized by New York law on any of the cases 1
prosecuted.

7

1136

13. You also noted in your hearing testimony that you were the “person designated to
get up to speed on capital prosecutions, lead the office, and in fact wound up
teaching attorneys around the State how to prosecute capital cases” after New York
State enacted a capital penalty statute in 1995. Can you please explain in detail
what information you provided attorneys around the State about how to prosecute
capital cases?

Response: In January, 1998, 1 served as a member of a panel discussing “Emerging
Legal Issues” at a Statewide Conference on Capita] Prosecution organized by the New
York Prosecutors Training Institute (NYPT1). In August, 1999, 1 gave a lecture entitled
“Arguing for Death” at a Statewide Conference on Capital Prosecutions -
Demonstrations and Discussions organized by NYPTI. In August, 2001, as part of a
Capital Prosecution Survey Course organized by NYPTI, 1 gave a presentation entitled
“A View From the Box” regarding jurors in capital cases. In February, 2002, as part of a
conference hosted by NYPTI entitled “Terrorism and Emerging Legal Issues in Murder
Prosecutions,” I gave a presentation entitled “Handling a Death Penalty Case.” The
above presentations were listed in response to question 12.d. on my United States Senate,
Committee on the Judiciary, Questionnaire for Judicial Nominees and if outlines exist,
they were provided with the Questionnaire.

In addition to these formal presentations I served as part of a panel of prosecutors from
across New York who were available to and did provide advice to other New York
prosecutors on issues related to the prosecution of capital cases. This was generally done
by way of telephone conferences. I do not have notes of specific cases or issues
discussed during these conferences. Additionally, on at least one occasion that I can
recall, prosecutors from another county in New York came to my office and I spent two
days assisting them in preparing for a capital trial in their county.

a. How many capital cases have you prosecuted in your career?

Response: l was lead prosecutor on three cases where a notice of intent to seek
the death penalty was actually filed.

b. Please provide a brief summary of and citations for each death penalty case
in which you participated, and, to the extent available, copies of opinions
issued in those cases.

Response: Please see the summaries below:

People v. Foued Abdallah aka Tom Cruise (New York State Supreme Court,
Monroe County, Indictment #53, 1996)

Abdallah was charged with Murder in the First Degree for breaking into his ex-
girlfriend’s home while she was out, waiting for her, and then stabbing her to
death with her seven year old son in the house. The district attorney, Howard R.

8

1137

Relin, filed a notice of intent to seek the death penalty. The defendant pled guilty
before trial, with the consent of the district attorney, to Murder in the First Degree
with a sentence of life without parole. The defendant appealed and his conviction
and sentence were affirmed ( People v. Foued Abdallah . 23 AD3d 1116 [4 lh Dept,
2005], leave denied 6 NY3d 845 [2006]). Abdallah also filed a petition for a writ
of habeas corpus in the Western District of New York. Habeas relief was denied
and the petition was dismissed by decision and order of Hon. Michael A. Telesca,
on April 26, 2010 (Cruise v. Conway , unreported \ 2010 WL 1 707924 (WDNY
2010). I was lead trial counsel during the prosecution of Abdallah.

People v. Mateo (Monroe County Court, Indictment #914, 1996)

Mateo was charged with Murder in the First Degree, Attempted Murder in the
First Degree, kidnapping and other crimes for his role in three separate but related
incidents. He was charged with a second count of first degree murder for the
commission of four murders in a similar fashion. The first degree murder charges
were under a recently enacted capital murder statute. The trial judge dismissed
one first degree murder charge on the ground that the murders were not
sufficiently similar ( People v. Mateo . 175 Misc.2d 192, 218 [Monroe County Ct,
1997]). The People appealed and the trial court’s decision was affirmed by the
Appellate Division and the Court of Appeals ( People v. Mateo . 249 AD2d 894
[4th Dept 1998]; affirmed 93 NY2d 327 [1999]). The trial court also declared a
provision of the statute dealing with pleas unconstitutional. The Appellate
Division granted a declaratory judgment in favor of the District Attorney (Relin v.
Connell . 251 AD2d 1041 [4th Dept, 1998]). The Court of Appeals later reversed
the Appellate Division and affirmed the trial court’s ruling ( Hvncs v. Tomei . 92
NY2d 613 [1998]). The United States Supreme Court denied certiorari ( llvnes v.
Tomei. 527 U.S. 1015 [19991T

The District Attorney sought the death penalty and Mateo was tried and convicted
of Murder in the First Degree as well as other crimes. The defendant was
sentenced to death. The convictions were affirmed on appeal, but the death
sentence was set aside due to a ruling that a portion of the state statute was
unconstitutional ( People v. Mateo . 2 NY3d 383 [2004]). The matter was remitted
for resentencing and the defendant was sentenced to life without parole. The
defendant filed a petition for a writ of habeas corpus in the Western District of
New York. On October 9, 2009, Hon. Michael A. Telesca, denied habeas relief
and dismissed the petition. Mateo v. Artus . unreported , 2009 WL 3273878
(WDNY 2009).

Mateo’s three additional murder charges were tried separately and the defendant
was convicted of the murders. The convictions were affirmed ( People v. Mateo .

1 1 AD3d 984 [4th Dept, 2004], leave denied 3 NY3d 758). I was the lead
prosecutor for all of the Mateo litigation.

9

1138

People v. Owens (New York State Supreme Court, Monroe County,
Indictment #414 and #547, 1999)

John Owens, a five-time felon, was charged with two counts of Murder in the
First Degree and additional crimes for the rape and murder of two women. He
was also charged with two counts of Rape in the First Degree and related crimes
for the forcible rapes of two additional women. The District Attorney sought the
death penalty. The two first degree murder charges and one of the rape charges
were tried before a jury. The defendant was convicted of all three charges after a
trial that spanned nine months. The jury deadlocked on whether to sentence the
defendant to death or life without parole on one count, and on the other count,
they agreed to a sentence of life without parole. The defendant was sentenced to
life without parole, 25 years to life on the second (deadlocked) murder, and 25
years on the rape. This conviction was affirmed on appeal ( People v. Owens . 5 1
AD3d 1 369 [4th Dept 2008]; leave denied 1 1 NY3d 740).

At a separate trial, the defendant was convicted of the remaining rape and
sentenced to an additional 25 years. This conviction was affirmed on appeal
(People v. Owens. 50 AD3d 1579 [4th Dept 2008]; leave denied 10 NY3d 938). I
was lead counsel for all of the Owens litigation.

Copies of all published opinions I am aware of from these cases are attached.

c. How is prosecuting a capital case different from prosecuting a life sentence?

Response: Under the New York State death penalty provisions there are many
differences. The New York Legislature, in reinstating the death penalty, enacted
special protections for capital defendants, including, specially trained and
appointed counsel, additional time for pretrial motions, individual voir dire of
prospective jurors, and a direct appeal, as a matter of right, to the New York Court
of Appeals. Under New York’s death penalty sentencing scheme, a convicted
defendant has a right to a separate sentencing proceeding before a jury and the
right to presentation of mitigating factors by way of testimony. The United States
Supreme Court has recognized the differences between cases where a defendant
faces the death penalty and when life imprisonment is the maximum penalty.
"[T]hc penalty of death is qualitatively different from a sentence of imprisonment,
however long.... Because of that qualitative difference, there is a corresponding
difference in the need for reliability in the determination that death is the
appropriate punishment in a specific case.” Woodson v. North Carolina . 428 U.S.
280,305(1976).

10

1139

Westiaw

23 A.D,3d 1116
23 A.D.3d 1116

(Cite as: 23 A.D.3d 1U6, 803 N.Y.S.2d 084)

H

People v. Abdallah
23 A.D.3d 1116, 803 N,Y.S.2d 484
NY,2005.

23 A.D.3d 1116803 N.Y.S.2d 484, 2005 WL
3021212, 2005 N.Y. Slip Op. 08523

The People of the State of New Yoik, Respondent
v

Foued Abdallah, Also Known as Tom Cruise, Ap-
pellant

Supreme Court, Appellate Division, Fourth Depart-
ment, New York

November 10, 2005

CITE TITLE AS: People v Abdatlah

Appeal from a judgment of the Supreme Court,
Monroe County (Donald J. Wisner, J ), rendered Ju-
ly 8, 1996. The judgment convicted defendant,
upon his plea of guilty, of murder in the first de-
gree.

NY,2O05.

People v Abdallah

23 A.D,3d 1116

END OF DOCUMENT

It is hereby ordered that the judgment so appealed
from be and the same hereby is unanimously af-
firmed,

Memorandum: Defendant appeals from a judgment
convicting him, upon his plea of guilty, of murder
in the fust degree (Penal Law § 125.27 [1] [a] [vii])
. Defendant failed to move to withdraw his plea or
to vacate the judgment of conviction and thus failed
to preserve for our review his contention that the
plea allocution is factually insufficient {see People
v Lopez , 71 NY2d 662, 665 [1988]). Contrary to de-
fendant's contention, this case does not fall within
the narrow exception to the preservation doctrine
set forth in Lopez {see id at 666). Present-Kehoc,
J.P., Martoche, Pine, Lawton and Hayes, JJ.

Copr. (c) 2011, Secretary of State, State of New
York

Page 1

© 201 1 Thomson Reuters. No Claim to Orig, US Gov. Works,

1140

Westiaw.

849 N,E.2d 974 Page!

6 N,Y.3d 845, 849 N.E.2d 974, 816N.Y S.2d 751 (Table)

(Cite ns: 6N.Y.3d 845)

H

(The decision of the Court of Appeals of New York
is referenced in the North Eastern Reporter and
New York Supplement in a table entitled
“Applications for Leave to Appeal - Criminal ”)

Court of Appeals of New York
People
v.

Foued Abdallah
April 21, 2006

4th Dept.: 23 A.D.3d 1116, 803 N.Y.S.2d 484
(Monroe)

Read, J.

Denied,

N.Y.2006.

People v. Abdallah

6 N,Y.3d 845, 849 N.E.2d 974, 816 N.Y.S.2d 751
(Table)

END OF DOCUMENT

© 20! 1 Thomson Reuters. No Claim to Orig, US Gov, Works.

1141

Westlaw,

Page l

Slip Copy, 2010 WL 1707924 (W.D.N.Y.)

(Cite as: 2010 WL 1707924 (W.D.N.Y.))

Only the Westlaw citation is currently available.

United States District Court,

W.D. New York.

Tom CRUISE, A/K/A Foued Abdallah, Petitioner,
v.

James CONWAY, Respondent.

No. 07-CV-6429T.

April 26,2010.

West KeySummaryCriminal Law 110 *>=>1909

1 JO Criminal Law
1 10XXXI Counsel

1 10XXXr(C) Adequacy of Representation
1 10XXXI(C)2 Particular Cases and Issues
1 1 Ok 1 908 Raising of Particular De-
fense or Contention

i 10k 1 909 k. In General. Most Cited

Cbscs

Defendant failed to show that defense counsel's
failure to investigate or put forth an argument that
the defendant lived at the victim's house was un-
reasonable, and therefore he could not show that he
was provided ineffective assistance of counsel.
Evidence showed that on the date of the murder the
victim lived with her young son at the address
where she was murdered, and there was nothing in
the record to suggest that the defendant lived at the
place of the murder. During the defendant's plea
colloquy the defendant stated that he had never
lived at the address of the murder; that he did not
have a right or a key to enter the address; and that
he broke into the address. An investigator testified
that during an interview the defendant told him the
address where he lived and that he had been at his
own home on the day of the murder. U.S.C.A
Const. Amend.

Stephen X. O'Brien, Wendy Evans Lehmann, Mon-
roe County District Attorney, Rochester, NY, for
Respondent.

Tom Cruise, Attica, NY, pro se.

DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.

I. Introduction

*1 Pro se Petitioner Tom Cruise, a/k/a Foued
Abdallah, (“Petitioner”) has filed a timely petition
for a writ of habeas corpus under 28 U.S.C. § 2254
challenging the constitutionality of his custody pur-
suant to a judgment entered July 8, 1996, in New
York State, Supreme Court, Monroe County, con-
victing him, upon a plea of guilty, of Murder in the
First Degree (N.Y. Penal Law (“Penal Law”) §
125.27[l][fi][vii]).

For the reasons stated below, habeas relief is
denied and the petition is dismissed.

II. Factual Background and Procedural History

The charges arise out of the stabbing death of
Petitioner’s former girlfriend, Anna Rickards
(“Rickards” or “the victim”), that occurred in the
Town of Chili, New York on December 14, 1995.
On that date, Petitioner broke into the victim's
home, waited for her to arrive, and then attacked
her with a knife when she and her young son re-
turned. Rickards died from the stab wounds inflic-
ted by the Petitioner.

On January 26, 1996, Petitioner was indicted
by a Monroe County Grand Jury and charged with
one count of murder in the first degree and two
counts of burglary in the first degree. Shortly there-
after, the People filed a notice of intent to seek the
death penally if Petitioner was convicted of murder
in the first degree. Plea Minutes (P.M.] 3.

On June 4, 1996, Petitioner appeared in court
and plead guilty to murder in the first degree in sat-
isfaction of all charges in the indictment. On July 8,
1996, Petitioner was sentenced, in accordance with
the plea agreement, to a term of incarceration of life
without parole. Sentencing Minutes [S.M.] 30.

© 201 1 Thomson Reuters, No Claim to Qrig. US Gov. Works.

1142

Page 2

Slip Copy, 2010 WL 1707924 (W.D.N.Y.)
(Cite as: 2010 WL 1707924 (W.D.N.Y.))

Petitioner appealed his judgment of conviction,
to the Appellate Division, Fourth Department,
which was unanimously affirmed on November 10*
2005. People v. Abdallah, 23 A.D.3d 1116, 803
N, Y,S.2d 484 (4th Dept.2005), /v. denied, People v.
Abdallah, 6 N.Y.3d 845, 816 N.Y.S.2d 751, 849
N.E.2d 974 (2006).

On or about May 16, 2006, Petitioner filed a
New York Criminal Procedure Law ("CPL”) §
440.10 motion to vacate the judgment of convic-
tion, which was denied by the Supreme Court,
Monroe County on October 5, 2006. See Decision
and Order of the Supreme Court, Monroe County,
Tnd, # 1996-0053, dated 10/05/06 (“440.10 Dec.").
Petitioner appealed the denial of the motion to the
Appellate Division, Fourth Department, which was
denied on June 1 1, 2007. See Decision of the Ap-
pellate Division, Fourth Department (Associate
Justice Elizabeth W. Pine), Ind. No. 1996-0053,
dated 06/11/07.

This habeas petition followed. (Dkt .# 1)

III. General Principles Applicable to Habeas Re-
view

A. The AEDPA Standard of Review

Under the Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”), a federal court may grant
habeas relief to a state prisoner only if a claim that
was “adjudicated on the merits” in state court
“resulted in a decision that was contrary to, or in-
volved an unreasonable application of, clearly es-
tablished Federal law, as determined by the Su-
preme Court of the United States,” 28 U S.C. §
2254(d)(1), or if it “was based on an unreasonable
determination of the facts in light of the evidence
presented in the state court proceeding.” §
2254(d)(2). A state court decision is “contrary to”
clearly established federal law “if the state court ar-
rives at a conclusion opposite to that reached by
[the Supreme Court] on a question of law or if the
state court decides a case differently than [the Su-
preme Court] has on a set of materially indistin-

guishable facts.” Williams v. Taylor, 529 U.S. 362,
413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The
phrase, “clearly established Federal law, as determ-
ined by the Supreme Court of the United Stales,”
limits the law governing a habeas petitioner's
claims to the holdings (not dicta) of the Supreme
Court existing at the time of the relevant state-court
decision. Williams, 529 U.S. at 412; accord Seven-
can v. Herbert, 342 F.3d 69, 73-74 (2d Cir.2002),
cert . denied, 540 U.S. 1197, 124 S.Ct. 1453, 158
L.Ed.2d 111 (2004).

*2 A stale court decision is based on an
“unreasonable application” of Supreme Court pre-
cedent if it correctly identified the governing legal
rule, but applied it m an unreasonable manner to the
facts of a particular case. Williams, 529 U.S. at
413; see also id. at 408-10. “[A] federal habeas
court is not empowered to grant the writ just be-
cause, in its independent judgment, it would have
decided the federal law question differently ”
Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir,2O0t).
Rather, “(t]he state court** application must reflect
some additional increment of incorrectness such
that it may be said to be unreasonable.” Id- This in-
crement “need not be great; otherwise, habeas relief
would be limited to state court decisions so far off
the mark as to suggest judicial incompetence.”
Francis S. v. Stone, 221 F.3d 100, 111 (2d
Cir.2000) (internal quotation marks omitted).

Under AEDPA, "a determination of a factual
issue made by a State court shall be presumed to be
correct. The [petitioner] shall have the burden of re-
butting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1); see
also Parsed v. Greiner, 337 F.3d 175, 181 (2d
Cir.2003) ( “The presumption of correctness is par-
ticularly important when reviewing the trial court's
assessment of witness credibility.”), cert, denied
sub nom. Parsad v. Fischer, 540 U.S. 1091, 124
S.Ct. 962, 157 L.Kd.2d 798 (2003). A state court's
findings “will not be overturned on factual grounds
unless objectively unreasonable in light of the evid-
ence presented in the state-court proceeding.”

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1143

Page 3

Slip Copy, 2010 WL 1707924 (W.D.N.Y.)
(Cite as; 2010 WL 1707924 (W.D.N.Y.))

Miller-El v. Cockrell, 537 U.S. 322, 340, U3 S.Ct.
1029, 154 L.Ed.2d931 (2003).

B, Exhaustion Requirement

“An application for a writ of habeas corpus on
behalf of a person in custody pursuant to a judg-
ment of a State court shall not be granted unless it
appears that ... the applicant has exhausted the rem-
edies available in the courts of the State....” 28
US.C. § 2254(b)(1)(A); see, eg., O'Sullivan v. Bo-
erckel, 526 U.S. 838, 843-44, 119 S.Ct. 1728, 144
L.Ed.2d t (1999); accord, e g., Bossett v. Walker,
41 F.3d 825, 828 (2d Cir.1994), cert, denied, 514
U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995)
. “The exhaustion requirement is not satisfied un-
less the federal claim has been ‘fairiy presented’ to
the state courts.” Daye v. Attorney General, 696
F.2d 186, 191 (2d Cir.I982) {en banc ), cert,
denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d
184(1984).

C. The Adequate and Independent State Ground
Doctrine

"It is now axiomatic that ‘cases in which a state
prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims
is barred.* “ Dunham v. Travis, 313 F.3d 724, 729
(quoting Coleman v. Thompson , 501 U.S. 722, 750,
111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). “A
habeas petitioner may bypass the independent and
adequate state ground bar by demonstrating a con-
stitutional violation that resulted in a fundamental
miscarriage of justice, i,e., that he is actually inno-
cent of the crime for which he has been convicted.”
Id. (citing Schtup v. Delo . 513 U.S. 298, 321, 115
S.Ct. 851, 130 L.Ed.2d 808 (1995); Murray v. Car-
rier. All U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d
397 (1986)).

IV, Petitioner's Claims

1. Insufficient Plea Allocution

*3 Specifically, Petitioner asserts that the plea
colloquy negated elements of the crime, and that

the trial court failed to make factual inquiries to en-
sure that Petitioner was aware of such defects and
still wished to enter a guilty plea. Petition [Pet.],
Para. 11-13. Petitioner raised (his claim on direct
appeal, and it was rejected on state procedural
grounds. See Abdallah , 23 A.D.3d at 1116, 803
N,Y.S,2d 484, Consequently, the claim is procedur-
aliy barred from habeas review by this Court.

A federal court may not review a question of
federal law decided by a state court if the state
court’s decision rested on a state law ground, be it
substantive or procedural, that is independent of the
federal question and adequate to support the judg-
ment. See Coleman , 50! U.S. at 729. Here, the state
court relied on New York's preservation rule
(codified at CPL § 470.05(2)) to deny Petitioner's
claim because the issue had not been properly pre-
served for appellate review (i.e., Petitioner failed to
move to withdraw his plea or move to vacate the
judgment of conviction). The Second Circuit has
determined that CPL § 470.05(2) is an independent
and adequate state procedural ground. See
Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.1990)
; see also Garcia v. Lewis. 188 F.3d 71, 79-82 (2d
Cir.1999). The Appellate Division's reliance on
CPL § 470.05(2) is an independent and adequate
state ground, barring this Court’s review of Peti-
tioners claim that he was deprived of due process
of law because of an insufficient plea allocution.

A finding of procedural default will “bar
habeas review of the federal claim, unless the
habeas petitioner can show ‘cause* for the default
and ‘prejudice attributable thereto,’ or demonstrate
that failure to consider the claim will result in a
miscarriage of justice.” Coleman, 501 U.S. at
749-50 (internal citations omitted); accord, e.g.,
Fatna v. Commissioner of Com Servs., 235 F.3d
804, 809 (2d Cir.2000). Petitioner makes no show-
ing of the requisite cause and prejudice necessary to
overcome the procedural bar, nor has he demon-
strated that this Court's failure to review the claim
will result in a miscarriage of justice (i.e., that he is
actually innocent). Accordingly, habeas relief is un-

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1144

Page 4

Slip Copy, 2010 WL 1707924 (W.D.N.Y.)

(Cite as: 2010 WL 1707924 (W.D/N.Y.)}

available to Petitioner, and the claim is dismissed.

2, Coerced Guilty Plea

Petitioner argues that his guilty plea was ob-
tained in violation of his rights under both the New
York State and Federal Constitutions. He argues,
inter alia, that he was coerced into pleading guilty
out of fear of receiving the death penalty. Pet.,
Para. 12, 13, 38-47. Petitioner raised this claim in
his CPL § 440.10 motion*^and it was rejected ott
state procedural grounds. See 440.10 Dec., 3.
Consequently, the claim is procedurally barred
from habeas review by this Court.

FN1. Notably, the trial court rejected this
claim, in the alternative, on the merits,
finding that: “[t]he plea colloquy refutes
defendant's seif serving affidavit that he
was coerced to plead guilty. The record
amply demonstrates that defendant know-
ingly, intelligently, and voluntarily entered
into the pica with the benefit of counsel.
The arrangement to which the defendant
agreed is both effective and enforceable.’*
440.10 Dec., 3 (internal citations and quo-
tations omitted).

As discussed above, a federal court may not re-
view a question of federal law decided by a state
court if the state court’s decision rested on a state
law ground, be it substantive or procedural, that is
independent of the federal question and adequate to
support the judgment. See Coleman, 501 U.S. at
729. Here, the Supreme Court, Monroe County re-
jected Petitioner's elaim pursuant to CPL § 440.
10(2)(c), finding that the claim was a matter of re-
cord that could have been raised at the time of Peti-
tioner's direct appeal, but unjustifiably was not. See
440.10 Dec., 3; jcc also CPL § 440.10(2)(c) (the
court must deny a motion to vacate a judgment
when sufficient facts appear on the record underly-
ing the judgment to have permitted adequate review
of the issue on direct appeal). The Second Circuit
has recognized CPL § 440.10(2)(c) as an adequate
and independent state ground sufficient to preclude
federal habeas review of a state-court defendant’s

claims. Kg., Sweet v. Bennett, 353 F,3d 135,
139-40 (2d Cir.2003); Reyes v. Keane, 118 F.3d
136, 139 (2d Cir. 1997); AjKtricio v. Artuz, 269 F„3d
at 9 1 (2d Cir. 1991). The state court’s reliance on
CPL § 440.10(2)(c) is an independent and adequate
state ground, barring this Court's review of Peti-
tioner's claim that he was coeiced into pleading
guilty because of tile threat of the death penalty.

*4 Petitioner makes no showing of the requisite
cause and prejudice necessary to overcome the pro-
cedural bar, nor has he demonstrated that this
Court’s failure to review the claim will result in a
miscarriage of justice (i.e., that he is actually inno-
cent). See Coleman, 501 U.S. at 749-750. Accord-
ingly, habeas relief is unavailable to Petitioner, and
the claim is dismissed.

3. Ineffective Assistance of Counsel

Petitioner asserts that he was deprived of his
federal constitutional right to effective assistance of
counsel because his trial attorneys FN2 failed to in-
vestigate Petitioner's assertion that he lived at the
victim's address and could not be guilty of burglary,
and therefore of murder in the first degree, since he
lived at the house he was accused of breaking into,
at the time he broke in and killed Rickards. Pet.,
Para. 51, 52. Petitioner raised this claim in his CPL
§ 440. 1 0 motion, and it was rejected on the merits.
See 440.10 Dec., 3.

FN2. Petitioner was represented by the fol-
lowing three attorneys from the Capita!
Defender Office: Bill Easton, Esq., James
Moreno, Esq., and Thomas Dunn, Esq.

It is well-settled that a petitioner claiming inef-
fective assistance of trial counsel must show that
counsel’s representation was fundamentally detect-
ive, and that, but for counsel’s errors, there is a
reasonable probability that the result of the pro-
ceeding would have been different. See Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); Aparicio, 269 F.3d at 95, A
petitioner seeking to establish constitutionally inef-
fective assistance of counsel must overcome a

© 2011 Thomson Reuters, No Claim to Orig. US Gov. Works.

1145

Page 5

Slip Copy, 2010 WL 1707924 (W.D.N.Y,)
(Cite as: 2010 WL 1707924 (W.D.N.Y.))

“strong presumption that counsel's conduct falls
within the wide range of reasonable professional as-
sistance ... [and] that, under the circumstances, the
challenged action ‘might be considered sound trial
strategy.’ “ Id. at 689 (quoting Michel v. Louisiana,
350 U.S. 91, 10K 76 S.Ct. 158, 100 L.Ed. S3
(1955)); see also , e.g., United States v. Jones, 918
F.2d 9, 1 1 (2d Cir.1990) (holding that counsel's de-
cisions should not be evaluated in hindsight). And,
of course, counsel is "strongly presumed to have
rendered adequate assistance and [to have] made all
significant decisions in the exercise of reasonable
professional judgment.” Strickland, 466 U.S. at
689-90,

Here, Petitioner argues, unconvincingly, that be
was denied effective assistance of counsel because
none of the three attorneys who represented him
from the Capital Defender Office investigated his
assertion that he lived at the address where the
murder occurred, and thus could not be guilty of
burglarizing the Rickard home. This claim fails in-
somuch as it is entirely belted by the record. The
record shows that, on the date of the murder
(December 14, 1995), Rickards lived with her
young son at 3502 Union Street in the Town of
Chili, New York. P.M, 11. There is nothing in the
record that suggests that Petitioner lived at 3502
Union Street on the date of the murder. Notably, at
no time prior to or during the entry of the plea did
Petitioner claim he lived at 3502 Union Street on
the date of the murder.

During his plea colloquy, Petitioner stated the
following: that he had never lived at 3502 Union
Street; that he did not live at 3502 Union Street at
the time of the murder; that he had no right to enter
3502 Union Street on December 14, 1995; that he
did not have a key to 3502 Union Street; and that he
broke into 3502 Union Street on December 14,
1995. Petitioner also staled, on the record, that his
relationship with Rickards had ended "around
November” ofl995. P.M. 10-12.

*5 These assertions were corroborated by other
evidence. At a pre-pica hearing, for example. In-

vestigators Passmore and Crough, investigators
with the Monroe County Sheriffs Office Major
Crimes Unit ("Major Crimes Unit”)* testified that,
during a December 15, 1995 interview. Petitioner
told them the following: that he lived at 7 Avanti
Drive in Gates; that he had broken up with Rickards
approximately two months prior to the date of the
murder; and that he had been in his own home on
the day of the crime. Hearing Minutes [H.M.]
139-147, 196, 204, 207. Additionally, Investigator
Connors, another investigator with the Monroe
Coiuity Sheriffs Office, who was called to the
scene of the crime on the night of the murder, testi-
fied, at the pre-plea hearing, that he observed a
“shattered and broken” door casing at the Rickard
home.-H.M. 123. Furthermore, at sentencing, the
prosecutor noted the following: that on or about
November 16, 1995, Petitioner had gone to the
Rickard home to remove his property; that, at that
time, he became so violent that Rickard called the
police, who removed Petitioner and warned him not
to go back; that three days later Petitioner broke in-
to the Rickard home; that on the day before the
murder. Petitioner and Rickards went to a pre~
wan-ant hearing for a menacing charge related to an
earlier incident; that, as a result of that hearing, a
warrant was issued for Petitioner's arrest and Peti-
tioner was instructed not to go near the Rickard
home or have contact with Rickard; that, on
December 14, 1995, Petitioner unscrewed a motion
light on an adjoining house which lit up the Rickard
home, cut the phone lines, and kicked in her back
door and broke the door frame. S.M. 19-21.

There is nothing in the record, or in the instant
habeas petition, that refutes any of the evidence, as
discussed above. Petitioner, rather disingenuously,
points to his New York State driver's license to sup-
port his contention that he lived at 3502 Union
Street at the time of the murder. See Petitioner’s
Abstract of Driving Record (Respt’s Exhibit M J”).
This document lists Petitioner's address as 3502
Union Street, but lists the application date for the
license as January 18, 1994, nearly two years be-
fore the date of the murder. As Respondent cor-

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. "Works.

1146

Page 6

Slip Copy, 2010 WL 1707924 (W.D.N.Y.)
(Cite as; 2010 WL 1707924 (W.D.N.Y.))

rcctly argues, it is irrelevant whether Petitioner ever
lived at 3502 Union Street, and the record is clear
that Petitioner did not live at 3502 Union Street on
the date of the murder (December 14, 1995). See
Resp’t. Memo, of Law, 26.

Petitioner has failed to show that defense coun-
sel's failure to investigate or put forth the argument
that Petitioner lived at 3502 Union Street at the
time of the murder was unreasonable, given the
facts and circumstances of this case. Where there
has been no error on the part of counsel, the out-
come of the proceeding cannot have been affected.
Accordingly, the Court cannot find that the trial
court's determination of this issue was contrary to
or an unreasonable application of Strickland
Habeas relief is not available to Petitioner and the
claim is dismissed.

V. Conclusion

*6 For the reasons stated above, the petition for
a writ of habeas corpus pursuant to 28 U.S.C. §
2254 is denied, and the petition is dismissed-. Be-
cause Petitioner has failed to make “a substantial
showing of a denial of a constitutional right/' 28
U.S.C. § 2253(c) (2), I decline to issue a certificate
of appealability. See, e.g., Lncidore v, New York
State Div. of Parole, 209 F.3d 107, 111-113 (2d
Cir.2000). The Court also hereby certifies, pursuant
to 28 U.S ,C. § 1915(a)(3), that any appeal from
this judgment would not be taken in good faith and
therefore denies leave to appeal as a poor person.
Coppedge v». United States, 369 U.S, 438, 82 S.Ct.
917, 8 L,Ed.2d 21 (1962).

Petitioner must file any notice of appeal with
the Clerk's Office, United States District Court,
Western District of New York, within thirty (30)
days of the date of judgment in this action. Re-
quests to proceed on appeal as a poor person must
be filed with United States Court of Appeals for the
Second Circuit in accordance with the requirements
of Rule 24 of the Federal Rules of Appellate Pro-
cedure.

IT IS SO ORDERED.

W.D.N.Y.,2010.

Cniise v. Conway

Slip Copy, 2010 WL 1707924 (W.D.N.Y.)
END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1147

Westi'aw.

Page 1

239 A,D.2d 965, 662 N.Y,S.2d 279, 1997 N.Y. Slip Op. 05272
(Cite as: 239 A.D.Id 965, 662 N.Y.S.Jd 279)

Supreme Court, Appellate Division,

Fourth Department, New York.

PEOPLE

v.

Angel MATEO, Defendant.

May 30, 1997.

*965 MEMORANDUM:

We conclude that defendant has not on this ap-
plication met his burden of demonstrating that there
is “reasonable cause to believe (hat a fair and im-
partial trial cannot be had" in Monroe County (CPL
230.20(2] ). If it develops during the voir dire that a
fair and impartial jury cannot be drawn, an appro-
priate application may then he made. The relief re-
quested in the application before us now is prema-
ture.

Motion for change of venue denied (see.
People v. Scolt, 197 A.D.2d 936, 604 N.Y.S.2d
843; see generally, People v. DiPiazza, 24 N.Y.2d
342, 300 N.Y.S.2d 54S, 248 N.E.2d 4 12).

**280 GREEN, J.P., and LAWTON, CALLAHAN,
DOERR and FALLON, JJ., concur.

N.Y.A.D. 4 Dept. 1997.

People v. Mateo

239 A.D.2d 965, 662 N.Y.S.2d 279, 1997 N.Y. Slip
Op. 05272

END OF DOCUMENT

© 201 1 Thomson Reuters, No Claim to Orig. US Gov. Works.

1148

Page 1

97553

Westlaw,

175 Misc.2d 192, 664 N.Y.S.2d 981 , 1997 NY, Slip Op.
(Cite as: 175 Misc.2d 192, 664 N.Y.S.2<I 981)

County Court, Monroe County, New York.

The PEOPLE of the State of New York, Plaintiff,
v.

Angel MATEO, Defendant.

No. 0914/96.

Aug. 25, 1997.

Defendant, who was charged with three counts
of first-degree murder, submitted defense applica-
tions. The County Court, Monroe County, Connell,
J., held that: (1) felony murder subdivision of first-
degree murder statute was not unconstitutionally
vague or overbroad; (2) felony murder subdivision
of first-degree murder statute sufficiently narrowed
class of people eligible for death penalty; (3) “serial
killer” subdivision of first-degree murder statute
was not applied retroactively; (4) “serial killer"
subdivision of first-degree murder statute did not
violate ex post facto clause; (5) count charging de-
fendant with crime of first-degree murder for inten-
tionally causing death of victim was not duplicit-
ous, although defendant was charged as both shoot-
er and commander; (6) grand jury presentation was
not defective; (7) grand jury was not illegally con-
stituted; (8) evidence was insufficient to establish
first-degree murder under "serial killer" subdivi-
sion; (9) statute governing procedure for determin-
ing sentence upon conviction for first-degree
murder was constitutional; (10) indictment that
tracked language of statute was sufficient on its
face; (1 1) search warrants were supported by prob-
able cause; (12) items that were not enumerated in
search warrants were properly seized pursuant to
plain view doctrine; (13) offenses that were joined
on basis of application of “serial killer” subdivision
of first-degree murder statute had to be severed and
tried separately from remaining counts in indict-
ment; (14) defendant was not entitled to expanded
bill of particulars; (15) instruction on sentencing
consequences of jury deadlock was proper; (16)
statute incorporating reverse Rosario discovery pro-

vision into sentencing proceeding in death eligible
case was constitutional; (17) statute requiring de-
fendant to prove mitigating factors at sentencing
phase of case by preponderance of evidence was
constitutional; (18) rigid application of rules of
evidence at sentencing phase of case did not violate
defendant's due process rights; and (19) statute re-
quiring sentencing jury to weight aggravating and
mitigating circumstances and then reach unanimous
decision as to whether death is appropriate punish-
ment was not unconstitutionally vague.

Motions denied.

West Hcadnotes

[1 j Constitutional Law 92 «E?=>739
92 Constitutional Law

92V1 Enforcement of Constitutional Provisions
92VI(A) Persons Entitled to Raise Constitu-
tional Questions; Standing

92VI(A)5 Vagueness in General
92k738 Criminal Law

92k739 k, In general. Most Cited

Cases

(Formerly 92k42.2(l))

Since felony murder subdivision of first-degree
murder statute involved no First Amendment con-
cerns, defendant lacked standing to claim that sub-
division was unconstitutionally vague on its face.
U.S.C.A. Const. Amend. 1; McKinney's Penal Law
§ 125.27, subd. l(a)(vii).

12) Constitutional Law 92 £^1800

92 Constitutional Law

92XVII1 Freedom of Speech, Expression, and
Press

92XV11I(H) Law Enforcement; Criminal

Conduct

92kl8O0 k. In general. Most Cited Cases
(Formerly 92k90.1(l))

Statute can be challenged as being overbroad
when it criminalizes speech.

€5 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1149

Page 2

97553

175 Misc.2d 192, 664 N.Y,S,2d 981, 1997 N.Y. Slip Op.
(Cite as: 175 Misc.2d 192, 664 N.Y.S.2U 981)

[3] Constitutional Law 92 £>^859
92 Constitutional Law

92VI Enforcement of Constitutional Provisions
92VI(A) Persons Entitled to Raise Constitu-
tional Questions; Standing

92VI(A)9 Freedom of Speech, Expres-
sion, and Press

92k858 Criminal Law

92k859 k, In general. Most Cited

Cases

(Formerly 92k42.2(l))

Since felony murder subdivision of first-degree
murder statute did not involve or affect speech, de-
fendant lacked standing to claim that subdivision
was overbroad on its face and as applied to him.
McKinney’s Penal Law § 125.27, subd. l(a)(vii).

J4J Constitutional Law 92 £=^=>1008

92 Constitutional Law

92VI Enforcement of Constitutional Provisions
92VI(C) Determination of Constitutional

Questions

92VI(C)3 Presumptions and Construction
as to Constitutionality

92kl006 Particular Issues and Applica-
tions

92k 1008 k. Penal statutes. Most

Cited Cases

(Formerly 92k48(4.J))

Constitutional Law 92 €=>1033

92 Constitutional Law

92VI Enforcement of Constitutional Provisions
92V 1(C) Determination of Constitutional

Questions

92V1(C)4 Burden of Proof

92kl032 Particular Issues and Applica-
tions

92kl033 k. In general. Most Cited

Cases

(Formerly 92k48(4,Q)

Penal statutes are presumed to be valid, and
criminal defendant has heavy burden of demonstrat-

ing that statute is unconstitutional.

[5] Criminal Law 110 £^>13.1

1 10 Criminal Law

1 101 Nature and Elements of Crime
1 10k! 2 Statutory Provisions

110kl3.1 k. Certainty and definiteness.
Most Cited Cases

(Formerly 1 10kl3.1(l))

For statute not to be struck down as unconstitu-
tionally vague, statute must provide sufficient no-
tice of what conduct is prohibited and must not per-
mit or encourage arbitrary law enforcement.

[6] Criminal Law 110 0==>13.1

1 10 Criminal Law

1 1 01 Nature and Elements of Crime
1 1 0k 1 2 Statutory Provisions

1 1 0k 13.1 k. Certainty and definiteness.
Most Cited Cases

(Formerly 110kl3. 1(1))

Some forms of conduct which state may validly
make subject lo penal sanctions cannot, and need
not, be defined with precision in statute.

[71 Homicide 203 <C=^576

203 Homicide

203III Homicide in Commission of or with In-
tent to Commit Other Unlawful Act
203111(A) In General

203k576 k. Constitutional and -statutory
provisions. Most Cited Cases
(Formerly 203k8)

Felony murder subdivision of first-degree
murder statute was not unconstitutionally vague or
overbroad, since it was sufficient to give person of
ordinary intelligence fair notice that intentionally
killing another individual in course of and in fur-
therance of felony was forbidden by statute and it
did not permit or encourage arbitrary law enforce-
ment. McKinney's Penal Law § 125.27, subd.
1(a)(vii).

[8J Homicide 203 <€=>588

© 20 1 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1150

Page 3

175 Misc,2d 192, 664 N.Y.S,2d 981* 1997 N.Y. Slip Op. 97553
(Cite as: 175 Wise, 2d 192, 664 N.Y.SJd 981)

203 Homicide

203 III Homicide in Commission of or with In-
tent to Commit Other Unlawful Act
203111(B) Murder

203k582 Predicate Offenses or Conduct

203k588 k. Causal relationship
between offense and death. Most Cited Cases
(Formerly 203kl8(l))

Felony murder does not embrace any killing
that is coincidental with the felony, but instead is
limited to those deaths caused by one of the felons
in furtherance of their crime. McKinney’s Pena!
Law § 125.27, 3ubd. l(a)(vu).

19] Homicide 203 €=576

203 Homicide

20311 1 Homicide in Commission of or with In-
tent to Commit Other Unlawful Act
203111(A) In General

203k576 k. Constitutional and statutory
provisions. Most Cited Cases
(Formerly 203 k8)

Statute providing that defendant who causes
death of another in course of and in furtherance of
certain felonies is guilty of second degree murder
was not unconstitutionally vague. McKinney’s Pen-
al Law § 125.25, subd. 3.

(10) Homicide 203 €=576

203 Homicide

203III Homicide in Commission of or with In-
tent to Commit Other Unlawful Act
203111(A) In General

203k576 k. Constitutional and statutory
provisions- Most Cit^d Cases
(Formerly 203k8)

Phrase ‘'commanded another person,"' as used
in felony murder subdivision of first-degree murder
statute, was not unconstitutionally vague, as it was
sufficient to put defendant on notice that it was
crime to order another person to intentionally cause
death of another. McKinney's Penal Law § 125.27,
subd. l(a)(vii).

[11} Homicide 203 €=576
203 Homicide

203III Homicide in Commission of or with In-
tent to Commit Other Unlawful Act
203111(A) In General

203k576 k. Constitutional and statutory
provisions. Most Cited Cases
(Formerly 203k8)

Felony murder subdivision of first-degree
murder statute narrowed class of people eligible for
death penalty, and, therefore, was not unconstitu-
tional. McKinney’s Penal Law § 125.27, subd.
l(a)(vu).

112] Statutes 361 €=278,2
361 Statutes

361 VI Construction and Operation
36 1 VI (D) Retroaet ivity

361k278.2 k. Nature and scope. Most

Cited Cases

(Formerly 92kl 88)

Statute is “retroactive" when it looks backward
or contemplates the past, or relates back to previous
transaction and gives it different legal effect from
that which it had under law when it occurred.

113] Statutes 361 €=278.5
361 Statutes

36 1 VI Construction and Operation
361 V1(D) Retroactivity

36lk278,4 Prospective Construction

361k278.5 k. In general. Most Cited

Cases

(Formerly 36Ik263, 361k262)

Statutes 361 €=278,7
361 Statutes

361 VI Construction and Operation
361 VI(D) Retroactivity

361k278.7 k. Express retroactive provi-
sions. Most Cited Cases

(Formerly 361k263, 361k262)

Statutes are generally construed as prospective,

© 2011 Thomson Reuters. No Claim to Orig. US Gov, Works.

1151

Page 4

97553

175 Misc.2d 192, 664 N.Y.S.2d981, 1997 N.Y. Slip Op.
(Cite as: 175 Misc.2d 192, 664 N,Y,S.2d 981)

unless language of statute, either expressly or by
necessary implication, requires that it be given ret-
roactive construction.

[14] Homicide 203 <£=>540

203 Homicide
20311 Murder

203k539 First Degree, Capital, or Aggrav-
ated Murder

203k540k. In general. Most Cited Cases
(Formerly 203k22{l))

Defendant cannot be deemed to have commit-
ted murder in first degree, under '‘serial killer* sub-
division of first-degree murder statute, until after he
or she commits third killing. McKinney's Penal
Law § 125.27, subd. l(a)(x«).

flSl Homicide 203 €==>524

203 Homicide
20311 Murder

203k521 Constitutional and Statutory Provi-
sions

203k524 k. Retroactive operation. Most

Cited Cases

(Formerly 203k8)

Statutes 361 €=>278.29

361 Statutes

361VI Construction and Operation
361 VI(D) Retroactivity

361k278.24 Validity of Particular Retro-
active Statutes

361k278,29 k. Criminal law. Most

Cited Cases

(Formerly 92k 1 88)

“Serial killer” subdivision of first-degree
murder statute was not applied retroactively to de-
fendant, even though the two prior homicides ne-
cessary for the subdivision to apply occurred prior
to its effective date. McKinney's Penal Law §
125.27, subd. 1(a) (xi).

[16] Constitutional Law 92 €=>2816

92 Constitutional Law

92XXIII Ex Post Facto Prohibitions

92XXIII(B) Particular Issues and Applica-
tions

92k28t4 Sentencing and Imprisonment
92k2816 k. Length of sentence. Most

Cited Cases

(Formerly 92k203)

Sentencing and Punishment 350H €=>1218

35 OH Sentencing and Punishment

350HVI Habitual and Career Offenders
350HVI(A) In General

350Hkl215 Retroactive Operation

350Hkl218 k. Use for enhancement of
offense or conviction occurring before effective
date. Most Cited Cases
(Formerly 92k203)

Statutes which permit enhancement of punish-
ment for present crime based upon prior crime,
even where prior crime occurred before enactment
of penalty-enhancing statute, are not encompassed
in prohibition against ex post facto laws. U.S.C.A.
Const. Art. 1, § 10, cl. 1.

[17] Constitutional Law 92 €=>2805

92 Constitutional Law

92XXI1I Ex Post Facto Prohibitions

92XXIII(B) Particular Issues and Applica-
tions

92k280i Particular Offenses

92k2805 k. Homicide. Most Cited

Cases

(Formerly 92k200, 203k8)

Homicide 203 €=>524

203 Homicide
203 II Murder

203k521 Constitutional and Statutory Provi-
sions

203k524 k. Retroactive operation. Most
Cited Cases

(Formerly 203k8)

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1152

Page 5

97553

175 Misc.2d 192, 664N.Y.S.2d98i, I997N.Y.SIip Op.
(Cite as: 175 Misc.2d 192, 664 N.Y.S.2tI 981)

“Serial killer” subdivision of first-degree
murder statute did not violate ex post Facto clause
of Federal Constitution; since intentional murder
had always been a crime, statute did not punish as
crime an act previously committed which was inno-
cent when done. U.S.C.A. Const. Art. 1, § 10, cl. 1;
McKinney's Penal Law § 125.27, subd. l(a)(xi).

(18] Homicide 203 <£=*540

203 Homicide
2031 1 Murder

203k539 First Degree, Capital, or Aggrav-
ated Murder

203k540 k. In general. Most Cited Cases
(Formerly 203k22(l))

Sentence under “serial killer” subdivision of
first-degree murder statute is stiffened penally for
latest crime, which is considered to be an aggrav-
ated offense because it is a repetitive one. McKin-
ney's Penal Law § 125.27, subd. l<a)(x»).

119] Indictment and Information 210 €=^>125(1)

210 Indictment and Information
2 10VI Joinder

2 10k 125 Duplicity

210kl25(l) k. In general. Most Cited

Cases

Each count of indictment can only charge one
offense. McKinney's CPL § 200.30, subd. 1 .

[20) Indictment and Information 210 £^?125(2)

210 Indictment and Information
210VI Joinder

2 TOk 1 25 Duplicity

2 10k 125(2) k. Propriety of joinder of sev-
eral offenses in general. Most Cited Cases

Indictment must contain separate accusation or
count addressed to each offense charged, if there be
more than one, and plain concise factual statement
in each count which asserts facts supporting every
element of offense thereof with sufficient precision
to clearly apprise defendant of conduct which is the
subject of the accusation. McKinney's CPL §

200.30, subd. 2.

(21] Indictment and Information 210 €^>125(1)

210 Indictment and Information
210V1 Joinder

210kl25 Duplicity

210kl25(l) k. In general. Most Cited

Cases

Count in indictment which accuses defendant
of more than one offense is duplicitous.

(22] Indictment and Information 210
125(40)

210 Indictment and Infomiation
210VI Joinder

210kl 25 Duplicity

21 0k 125(40) k. Concurring liability of
principal, accessory, and conspirator. Most Cited
Cases

Count in indictment charging defendant with
crime of first-degree felony murder was not dupli-
citous, even though defendant was charged as both
shooter and commander; indictment and bill of par-
ticulars clearly sel forth single theory of prosecu-
tion, that defendant intentionally caused death of
person in course of and in furtherance of kidnap-
ping, or acting with intent to cause death of person,
commanded another person to intentionally cause
his death. McKinney’s Penal Law § 125.27, subd.
l(a)(vii); McKinney's CPL § 200.30, subd. 1.

{23} Indictment and Information 210 C=>
121.2(5)

210 indictment and Information

210V Requisites and Sufficiency of Accusation
2 1 0k 121 Bill of Particulars

2 1 Ok 1 2 i .2 Cases in Which Allowed

21 0k 12 1.2(5) k. Homicide; assault.
Most Cited Cases

State did not have to specify whether defendant
charged with first-degree felony murder was shoot-
er or commander in its bill of particulars, since
manner of prosecution was the same for both.

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1153

Page 6

175 Misc.2d 192, 664 N.Y.S,2d 981, 1997 N.Y, Slip Op, 97553
(Cite as; 17SMisc.2d 192, 664 N.Y-S.2d 981)

McKinney’s Penal Law § 1 25.27, subd. l(a)(vti).

[24J Indictment and Information 210 €=^83

210 Indictment and Information

210V Requisites and Sufficiency of Accusation
2l0k83 k. Principals in second degree. Most
Cited Cases

Far charging purposes, distinction between
principal and accomplice is academic, since there is
no distinction between liability as principal and
criminal culpability as accessory and status for
which defendant is convicted has no bearing upon
theory of the prosecution.

[25} Indictment and Information 230 €=>10.1(6)

210 Indictment and Information

2 1 Oil Finding and Filing of Indictment or Pre-
sentment

210kl 0 Finding of Grand Jury
21 OkiO. 1 Validity in General

2 10k 1 0.1 (6) k. Concurrence in find-
ings. Most Cited Cases

Grand jury was not required to concur, when
they voted on first-degree felony murder charges,
as to defendants status as principal or accomplice,
since there was no legal distinction between liabil-
ity as principal and criminal culpability as accom-
plice. McKinney's Penal Law § 125.27, subd.
i(aXvii).

[26] Homicide 203 €^>540

203 Homicide
203II Murder

203k539 First Degree, Capital, or Aggrav-
ated Murder

203k540 k. In general. Most Cited Cases
(Formerly 203k22(l»

Charged crimes could be committed in “similar
fashion,” for purposes of “serial killer" subdivision
of first-degree murder statute, even if defendant ac-
ted as accomplice in some of the crimes, but as
principal in others. McKinney’s Penal Law § 125.27
, subd, l(a)(xi).

[27J Indictment and Information 210
125(41)

210 Indictment aud Information
210VI Joinder

210kl25 Duplicity

210kl25(41) k. Single act constituting
two or more offenses. Most Cited Cases

Fact that grand jury could have found that de-
fendant acted as both principal and accomplice
when he caused deaths of several people did not
make counts in indictment based on “serial killer”
subdivision of first-degree murder statute duplicit-
ous or impair integrity of grand jury, McKinney's
Penal Law § 125.27, subd. l(a)(xi).

[28} Indictment and Information 210 <C=>83

21 0 Indictment and Information

2I0V Requisites and Sufficiency of Accusation
2t0k83 k. Principals in second degree. Most
Cited Cases

Indictment charging either that defendant acted
separately or jointly with others will sustain convic-
tion based upon evidence of his participation in
crime.

[29} Indictment and Information 210 <£=>71.2(2)

210 Indictment and Information

210V Requisites and Sufficiency of Accusation
2 1 0k7 1 Certainty and Particularity

21 0k7 1.2 Purpose of Requirement and
Test of Compliance

210k7L2(2) k. Informing accused of
nature of charge. Most Cited Cases

All that is required of an indictment is that it
provide defendant with fair notice of charges
against him; such notice is given by indictment
which simply charges defendant with specified Pen-
al Law violation whether prosecution's theory is
that defendant is principal or an abettor.

|30} Jury 230 €=>33(1.1)

230 Jury

230II Right to Trial by Jury

<D 2011 Thomson Reuters. No Claim to Orig. US Gov, Works.

1154

Page 7

175 Misc,2d 192* 664 N.Y.S,2d 981, 1997 N.Y. Slip Op. 97553
(Cite as: 175 Misc.2d 192, 664 N.Y.S.2d 981)

230k3Q Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(l.l) k. Representation of com-
munity, in general. Most Cited Cases

Sixth Amendment requires that jury be selected
from representative cross section of community.
U.S.C.A. Const. Amend 6

(311 dury 230 €=>33(1.1)

230 Jury

23011 Right to Trial by Jury

230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(i.l) k. Representation of com-
munity, in general. Most Cited Cases

To establish pritna facie case for violation of
fair cross section requirement under Sixth Amend-
ment, defendant must show: (1) that group alleged
to be excluded is distinctive group in community;

(2) that representation of this group in venires from
which juries are selected is not fair and reasonable
in relation to number of persons in community; and

(3) that this underrepresentation is due to systemat-
ic exclusion of group in jury selection process.
U.S.C.A. Const.Amend 6.

132| Jury 230 £=>33(1.1)

230 Jury

23011 Right to Trial by Jury

230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
23Qk33(l.l) k. Representation of com-
munity, in general. Most Cited Cases

To show that group is distinct or cognizable
under Sixth Amendment, defendant must show: (1)
that group is defined and limited by some factor;

(2) that common thread or basic similarity in atti-
tude, ideas, or experience runs through group; and

(3) that there is community of interest among mem-
bers of group such that group's interests cannot be
adequately represented if group is excluded from
jury selection process. U.S.C.A. Const.Amend, 6.

[331 Jury 230 €>=>33(1.20)

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(L2) Particular Groups, Inclu-
sion or Exclusion

230k33(1.20) k. Age. Most Cited

Cases

Young people grouped within arbitraiy age
range did not constitute “distinctive group" within
community, for purposes of fair cross section re-
quirement of Sixth Amendment, since this group
did not share similar specific characteristics.
U.S.C.A. Const.Amend- 6.

134] Jury 230 €==>33(1.10)

230 Jury

230II Right to Trial by Jury

230k3l) Denial or Infringement of Right
23Qlc33 Constitution and Selection of Jury
230k33(i .2) Particular Groups, Inclu-
sion or Exclusion

230k33(l.l0) k» Jn general Most

Cited Cases

Poor people did not constitute “distinctive
group” within community, for purposes of fair
cross section requirement of Sixth Amendment,
since poor people were not defined and limited by
some factor, such as race or sex, nor was there ne-
cessarily common thread or basic similarity in atti-
tudes, ideas, experiences, or community of in-
terests. U.S.C.A. Const.Amend. 6.

[35} Jury 230 €=>33(1.1)

230 Jury

23011 Right to Trial by Jury

23 0k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(l.l) k. Representation of com-
munity, in general. Most Cited Cases

For group to be distinct and cognizable, for
purposes of fair cross section requirement of Sixth
Amendment, membership in that group cannot
shift, or be arbitrarily selected or defined. U.S.C.A.

€5 2011 Thomson Reuters. No Claim to Orig. US Gov. Works,

1155

PageS

175 Misc.2d 1 92, 664 N.Y,S.2d 981 , 1997N.Y. Slip Op. 97553
(Cite ast 175 Misc.2d 192, 664 N.Y.SJd 981)

Const, Amend. 6,

(36) Jury 230 €=>33(1.10)

230 Jury

230U Right to Trial by Jury

230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(l,2) Particular Groups, Inclu-
sion or Exclusion

230k33(l.lQ) k. In general. Most

Cited Cases

Recent migrants to county did not constitute
“distinctive group" within community, for purposes
of fair cross section requirement of Sixth Amend-
ment, since this group was not defined or limited by
any factor, no common thread or similarity in atti-
tudes and ideas existed among group, and there was
no community of interests. U.S.C.A. Const.Amcnd.
6 .

(37) Jury 230 €==>33(1.10)

230 Jury

23011 Right to Trial by Jury

230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(1.2) Particular Groups, Inclu-
sion or Exclusion

230k33{1.10) k. Tn general Most

Cited Cases

Jury 230 €=>33(1.15)

230 Jury

23011 Right to Trial by Jury

23Gk30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(1.2) Particular Groups, Inclu-
sion or Exclusion

230k33(U5) k. Race. Most Cited

Cases

Jury 230 €=>33(1.25)

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(i ,2) Particular Groups, Inclu-
sion or Exclusion

230k33(l .25) k. Sex, Most Cited

Cases

Statistics presented by defendant did not estab-
lish that representation of African Americans, His-
panics, and women in venires from which juries
were selected was not fair and reasonable in rela-
tion to number of persons in community; accord-
ingly, defendant failed to establish violation of fair
cross section requirement of Sixth Amendment,
U.S.CA. ConstAmcnd. 6 ,

(38) Jury 230 €=>33(1.10}

230 Jury

23 011 Right to Trial by Juty

230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(l.2) Particular Groups, Inclu-
sion or Exclusion

230k33(1.10) k. In general Most

Cited Cases

Jury 230 €=>33(1.15)

230 Jury

23 011 Right to Trial by Jury

230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(l -2) Particular Groups, Inclu-
sion or Exclusion

230k33(l.I5) k. Race. Most Cited

Cases

Jury 230 €=>33(1,25)

230 Jury

230IJ Right to Trial by Jury

230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(1.2) Particular Groups, Inclu-
sion or Exclusion

230k33(1.25) k. Sex. Most Cited

© 201 1 Thomson Reuters. No Claim to Orig. US Gov, Works.

1156

Page 9

n5Mi.se.2d 192, 664N.Y.S,2d981, 1997 N.Y, Slip Op. 97553
(Cite ns; 175 Misc,2d 192, 664 N.YJ5.2d 981)

Cases

African Americans, Hispanics, and women
were not systematically excluded from jury selec-
tion process, in violation of fair cross section re-
quirement of Sixth Amendment, where jury pool
was comprised of random and facially neutral lists
of people who were registered to vote, paid taxes,
had driver's licenses, and received state unemploy-
ment benefits, U.S.C.A. Const.Amend. 6.

[39} Jury 230 €£=>33(1.1)

230 Jury

23011 Right to Trial by Jury

230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(I.l) k. Representation of com-
munity, in general. Most Cited Cases

For purposes of fair cross section requirement
of Sixth Amendment, “systematic exclusion” means
exclusion accomplished by means inherent in par-
ticular process used to select jury pool. U.S.C.A.
Const.Amend. 6.

[dill Jury 230 €=>33(1.1)

230 Jury

230II Right to Trial by liny

230k3O Dental or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(l .1) k. Representation of com-
munity, in general. Most Cited Cases

System is clearly open to all individuals, for
purposes of fair cross section requirement of Sixth
Amendment,, as long as state does not prevent
people from serving on jury or discriminate against
any individuals. U.S.C.A. Const.Amend. 6,

(411 Constitutional Law 92 €£=919

92 Constitutional Law

92 VI Enforcement of Constitutional Provisions
92V 1(A) Persons Entitled to Raise Constitu-
tional Questions; Standing

92VJ(A)1 1 Equal Protection
92k918 Criminal Law

92k9l9 k. In general. Most Cited

Cases

(Formerly 92k42*2(2))

Defendant, who was Hispanic male, had stand-
ing to assert claim that intentional discriminatory
exclusion of distinct and cognizable groups from
grand jury service violated his right to equal protec-
tion. U.S.C.A, Const. A mentis. 5, 14.

|42] Constitutional Law 92 €£=3833

92 Constitutional Law
92XXVT Equat Protection
92XXVI(G) Juries

92k3833 k. Grand juries. Most Cited

Cases

(Formerly 92k221(5»

To establish prima facie violation of right to
equal protection in connection with grand jury se-
lection process, defendant must establish that: (i)
recognizable and distinct classes have been singled
out for different treatment under the laws, as writ-
ten and applied; (2) substantial degree of underrep-
resentation of distinctive groups on grand juries has
occurred over significant period of time; and (3)
grand jury selection procedure is not racially neut-
ral and is .susceptible to abuse. U.S.C.A.
Const Amends. 5, 14.

{431 Constitutional Law 92 €£=3833

92 Constitutional Law
92XXVI Equal Protection
92XXVI(G) Juries

92k3833 k. Grand juries. Most Cited

Cases

(Formerly 92k250.2(l))

Grand Jury 193 €£=2.5
193 Grand Jury

193k2.5 k. Constitution in general; representa-
tion of community. Most Cited Cases

Grand Jury 193 €£=9

193 Grand Jury

© 2011 Thomson Reuters. No Claim to Grig. US Gov. Works.

1157

Page 10

175 Mi$c.2d 192, 664 N.Y.S -2d 98t, 1997 N.Y. Slip Op, 97553
(Cite as: 175 Misc.2d 192, 664 N.Y,S.2d 981)

193k9 k. Summoning jurors in general. Most
Cited Cases

Grand jury selection process did not violate de-
fendant's equal protection rights, since it was fair
and reasonable and did not discriminate against any
distinct groups. U.S.C.A. Const. Amends. 5, 14.

|44] Homicide 203 €=>1139

203 Homicide
2031 X Evidence

203IX(G) Weight and Sufficiency

203kl 138 First Degree, Capital, or Ag-
gravated Murder

203k 11 39 k. In general. Most Cited

Cases

(Formerly 203k253(l))

Evidence that defendant was involved in four
homicides with common element of death by gun-
shot was insufficient to establish “similar fashion"
element of “serial killer" subdivision of first-degree
murder statute, McKinney's Penal Law § 125.27,
subd. l(a)(xi).

|45 J Sentencing and Punishment 350H €=>1624

350H Sentencing and Punishment
350HVI1I The Death Penalty
350HV1II(A) In General

350Hkl622 Validity of Statute or Regu-
latory Provision

350Hkl624 k, Provision authorizing
death penalty, Most Cited Cases
(Formerly 203k35 1 )

Statute governing procedure for determining
sentence upon conviction for first-degree murder
was not unconstitutional, since it genuinely nar-
rowed class of persons eligible for death penalty
and reasonably justified imposition of death sen-
tence in those appropriate cases. McKinney’s CPL §
400.27.

(46] Indictment and Information 210
110(17)

210 Indictment and Information

210V Requisites and Sufficiency of Accusation
2 10k 107 Statutory Offenses
210k 1 10 Language of Statute

210kl 10(17) k. Homicide and feloni-
ous assaults. Most Cited Cases

Count of indictment charging defendant with
first-degree felony murder tracked language of stat-
ute, and, therefore, was sufficient on its face, even
though it allegedly failed to set forth factual allega-
tions establishing how defendant commanded death
of his victim. McKinney’s Penal Law § 125.27,
subd. l(a)(vii).

[47 J Searches and Seizures 349 €=>117

349 Searches and Seizures
349II Warrants

349kll5 Competency of Information;

Hearsay

349kl 17 k. Reliability or credibility; cor-
roboration. Most Cited Cases

Applications for search warrants were suffi-
cient to establish probable cause for issuance of the
warrants, where knowledge of informant was
grounded on her firsthand observations and her ad-
missions to police investigator were not only cor-
roborated by his knowledge of non-public aspects
of investigation but were also statements made
against her penal interest.

(48) Searches and Seizures 349 €=199

349 Searches and Seizures

3 49 VI Judicial Review or Determination

349kl99 k. Hearing; in camera inspection.
Most Cited Cases

Claimed inconsistencies in statements made by
informant did not justify evidentiary hearing re-
garding search warrants, since defendant's papers
did not allege any facts supporting conclusion that
perjurious statements were contained in police in-
vestigator's search warrant application.

[49] Searches and Seizures 349 €=>149
349 Searches and Seizures

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1158

Page \ \

97553

175 Misc.2d 192, 664 N.Y.S.2d 981, ] 997 N.Y. Slip Op.
(Cite as; 175 Mise.2d 192, 664 N.Y.S.&I 981)

3491IT Execution and Return of Warrants
349k 1 47 Scope of Search

349k 149 k. Objects in plain view; inad-
vertent discovery. Most Cited Cases

Items not enumerated in search warrant were
properly seized as evidence of crime seen in plain
view by executing officers, who were legally in po-
sition to view those items during their search.

(50) Criminal Law 1 10 C^>620(6)

110 Criminal Law
110XX Trial

1 3 0XX( A) Preliminary Proceedings

1 10k620 Joint or Separate Trial of Separ-
ate Charges

H0k62Q(3) Severance, Relief from
Joinder, and Separate Trial in General

1 1 0k620(6) k. Particular cases.

Most Cited Cases

Since “serial killer” subdivision of first-degree
murder statute was only basis for joining certain of-
fenses, and there was insufficient evidence before
grand jury on this issue, offenses had to be severed
and tried separately from remaining counts of in-
dictment. McKinney's Penal Law § 125.27, subd,
l(a)(xi).

[51] Indictment and Information 210
121.2(5)

210 Indictment and Information

210V Requisites and Sufficiency of Accusation
2 1 0k 121 Bill of Particulars

210kl2L2 Cases in Which Allowed

21 0k 1 2 1.2(5) k. Homicide; assault.
Most Cited Cases

Statutory provisions governing bills of particu-
lars in criminal cases applied in death penalty case.
McKinney's CPL § 200.95.

|52) Constitutional Law 92 €=>4745

92 Constitutional Law
92XXVI1 Due Process

92XXVII(H) Criminal Law

92XXVI1(H)6 Judgment and Sentence

92k4741 Capital Punishment; Death

Penalty

92k4745 k. Proceedings. Most

Cited Cases

(Formerly 92k268(ll), H0k798(.5))

Sentencing and Punishment 350H ^=>1780(3)

350H Sentencing and Punishment
350HVII1 The Death Penalty
350HVfII(G) Proceedings
350HVHI(G)3 Hearing

350Hkl780 Conduct of Hearing

350Hk 1780(3) k. Instructions. Most

Cited Cases

(Formerly 11 0k 121 3.7)

Jury instruction given by court in death penalty
case, which stated that jury's failure to act unanim-
ously could result in defendant’s ultimate release
from prison, did not result in more likely verdict of
death, so as to deprive defendant of constitutional
protections of Eighth and Fourteenth Amendments.
U.S.C.A. Conat.Amends. 8, 14; McKinney's CPL §
400.27, subd. 10.

[531 Criminal Law 110 €=*27,5(3)

U0 Criminal Law
1 10XX Trial

1 10XX(A) Preliminary Proceedings

1 1 0k627-5 Discovery Prior to and Incid-
ent to Trial

1 10k627.5(3) k. Prosecution's right to
disclosure. Most Cited Cases

Statute incorporating “reverse” Rosario discov-
ery provision into sentencing proceeding in death
eligible case did not unduly restrict defendant's
ability to present complete and thorough defense or
have unconstitutional chilling effect of defendant’s
sentencing phase strategy and presentation. McKin-
ney's CPL § 400.27, subd. 14(a)(ii).

[54] Sentencing and Punishment 350H €=>1626

350H Sentencing and Punishment

© 201 1 Thomson Renters. No Claim to Orig. US Gov. Works.

1159

Page 12

175 Misc.2d 192* 664 N,Y.S.2d 981, 1997 N.Y. Slip Op. 97553
(Cite as: 175 Misc,2d 192, 664 N,Y.S.2d 981)

350HV111 The Death Penalty
350HVIII(A) In General

350HU622 Validity of Statute or Regu-
iatory Provision

350Hkl626 k. Procedure. Most Cited

Cases

(Formerly 203k3 51)

Statute providing that burden of establishing
mitigating factors in sentencing phase of capital
murder case is on defendant and must be proven by
preponderance of evidence was not unconstitution-
al, since it did not increase likelihood of erroneous
application of death penalty. McKinney’s CPL §
400.27, subd. 6.

(55J Constitutional Law 92 C=>4744(2)

92 Constitutional Law
92XXVII Due Process

92XXVU(H) Criminal Law

92XXVIl(H)6 Judgment and Sentence
92k 4741 Capital Punishment; Death

Penalty

92k4744 Matters Considered

92k4744(2) k. Evidence and wit-
nesses. Most Cited Cases
(Formerly 92k270(2))

Sentencing and Punishment 350H C=>175t

350H Sentencing and Punishment
350HVJI1 The Death Penalty
350HVJII(G) Proceedings
350HVIJ1(G)2 Evidence

350Hkl751 k. Applicability of rules of
evidence in general. Most Cited Cases
(Formerly 203k358(l))

Sentencing and Punishment 350H 66

350H Sentencing and Punishment
350H VIII The Death Penalty
350HVIII(G) Proceedings
350HVITI(G)2 Evidence
350Hkl755 Admissibility

350Hkl766 k. Hearsay. Most Cited

Cases

(Formerly 203k358(l»

Rigid application of rules of evidence and in-
sistence upon reliable hearsay at sentencing phase
of capital murder case would not deprive defendant
of his state and federal constitutional rights to due
process, since rules of evidence were intended to
insure the introduction of only reliable and relevant
information in legal proceeding. U.S.C.A.
Const. Amends. 5, 14; McKinney’s CPL § 400.27,
subd. 6.

[56] Sentencing and Punishment 350H

3 5 OH Sentencing and Punishment
350H1 Punishment in General

350HI(C) Factors or Purposes in General
350Hk46 k. Passion and prejudice. Most
Cited Cases

(Formerly 110k977(l))

It is burden of state to insure that process in-
volved in sentencing is structured so as to guard
against bias or caprice in sentencing,

{57] Sentencing and Punishment 350H £=>1626

35 OH Sentencing and Punishment
350HVI1I The Death Penalty
350HVIII(A) In General

35DHkl622 Validity of Statute or Regu-
latory Provision

350Hkl626 k. Procedure. Most Cited

Cases

(Formerly 203k351)

Statute requiring sentencing jury in capital
murder case to first weigh aggravating and mitigat-
ing circumstances and then reach unanimous de-
cision as to whether death is appropriate punish-
ment was not unconstitutionally vague, and
provided adequate protection against imposition of
death penalty in arbitrary and capricious manner.
McKinney's CPL § 400.27, subd. 1 1(a).

**987*198 Kevin M. Doyle* Capital Defender (
William T. Easton and Joseph T, Flood, of coun-
sel), for defendant.

O 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1160

Page 13

97553

175 M5sc,2d 192, 664 N.Y.S.2d 981, 1997 N.Y. Slip Op.
(Cite asr 175 Misc.2d 192, 664 N,Y.S.2d 981)

Howard R. Refill, District Attorney of Monroe
County (Michael Green and Wendy Evans
Lehmann, of counsel), for plaintiff.

JOHN J. CONNELL, Judge,

The headings and numbering in this Decision
correspond as nearly as possible to those of the mo-
tion papers. To the extent that some issues are du-
plicated or overlap, there are some variances in that
procedure.

The defendant is charged with three counts of
Murder in the First Degree under Penal Law §
1 25.27(1 )(a)(vii) and (xi). This Court has denied
the following defense applications for substantially
the same reasons stated in People v. Hale, 173
Misc.2d 140, 661 N.Y.S.2d 457: to apply
heightened due process in death penalty cases; to
strike the death penalty notice of intent on the
grounds that the death penalty is unconstitutional
facially and as applied; to dismiss on grounds that
PL § 125.27(l)(a)(vii) is underinclusive; to reduce
the Indictment based on double-counting of the vic-
tims’ death; to declare CPL 320.10 unconstitutional
under New York's Constitution; and to preclude
death qualification of the jury before the guilt
phase.

C. PL § 1 25-27 (})(a)(vii) Unconstitutionally
Vague and Overbroad Claim

The defendant seeks to dismiss or reduce Count
1 0 of the Indictment cm the grounds that Penal Law
§ 125.27(lXa)(vii) is unconstitutionally vague and
overbroad. The defendant argues that the term “in
the course of ... and in furtherance of” has not been
defined by the Court of Appeals, and has been giv-
en disparate definitions from lower courts. There-
fore, this element under the statute is unconstitu-
tionally vague and overbroad as a matter of federal
and state due process. The defendant further asserts
that the element “commanded another person" has
never been defined by any court in New York State,
and that this provision lacks a standard for determ-
ining what conduct satisfies the “commander” ele-

ment, *199 thereby making the statute unconstitu-
tionally vague and overbroad. The defendant argues
that due to this lack of clarity, the statute does not
provide any way to distinguish those cases in which
the death penalty may be imposed from those cases
in which it may not.

[1J[2][3] When the constitutionality of a statute
is challenged on the ground of vagueness, typically
that particular statute involves the 1st Amendment.
Penal Law § 125.27(l)(a)(vii) involves no 1st
Amendment concerns. Therefore, the defendant
lacks standing to claim that the statute is unconsti-
tutionally vague on its face. The defendant can only
claim that the statute is unconstitutionally vague as
applied to his case ( United Slates v. Mazurie, 419
U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706,
**98SPeople v. Nelson, 69 N,Y.2d 302, 308, 514
N.Y.S.2d 197, 506 N.E.2d 907). Similarly, a statute
can be challenged as being overbroad when a par-
ticular statute criminalizes speech {New York v.
Ferber, 458 U.S. 747, 766, 102 S.Ct. 3348, 3359,
73 L.Ed.2d 1113; People v. Hollman, 68 N.Y, 2d
202, 208, 507 N.Y.S.2d 977, 500 N.E.2d 297). Pen-
al Law § 125.27(l)(a)(v»i) clearly does not involve
or affect speech, rather it affects conduct. Murder
during the cduisc of a felony is clearly conduct that
is not protected under the 1st Amendment. There-
fore, the defendant lacks standing to claim the stat-
ute is overbroad on its face and as applied to him.

[4][5][6][7] It is well established that penal
statutes are presumed to be valid, and a criminal de-
fendant has a “heavy burden of demonstrating that
a statute is unconstitutional.,..” ( People v. Bright,
71 N.Y. 2d 376, 382, 526 N.Y.S.2d 66, 520 N.E.2d
1355). In order for a statute not to be struck down
as unconstitutionally vague, “the statute must
provide sufficient notice of what conduct is prohib-
ited ... [and] docs not ... permit or encourage arbit-
rary ... law enforcement.” Id. ( People v. First Me-
ridian Planning Corporation, 86 N.Y.2d 608,
621-622, 635 N.Y.S.2d 144, 658 N.E.2d 1017;
People v. Nelson, 69 N.Y.2d 302, 307, 514
N.Y.S.2d 197, 506 N.E.2d 907 supra).- However,

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1161

Page 14

97553

175 Misc.2d 192, 664 N.Y.S.2d 981, 1997 N.Y. Slip Op.
(Cite as: 175 Misc.2d 192, 664 N.Y,S.2d 981)

“this doctrine recognizes that some forms of con-
duct which a State may validly make subject to
penal sanctions cannot, and need not, be defined
with precision” ( People v . Swartz, 130 A.D.2d 288,
290, 520 N.Y.S.2d 224 [3rd Dept. 1987]; appeal
denied 70 N.Y.2d 960, 525 N.Y.S.2d 844, 520
N.E.2d 562; United States u. Petriiio, 332 U.S. 1,
7-8, 67 S.Ct. 1538, 1541-1542, 91 L.Ed. 1877). The
defendant has failed to meet the burden of demon-
strating that the statute is unconstitutionally vague
and overbroad. The statute makes a crime to inten-
tionally kill another individual in the course of and
in furtherance of a felony. The statute puts the de-
fendant on notice that this type of conduct is pro-
hibited. To conclude otherwise would be absurd.
Penal Law § 125.27(1 )(a)(vii) is “sufficiently defin-
ite by its terms so as ‘to give a person of ordinary
intelligence fair notice that his contemplated con-
duct *200 is forbidden by the statute'.” ( People v.
Bright, supra at 382-383, 526 N.Y.S.2d 66, 520
N.E,2d 1 355; quoting United States v. Harriss. 347
U.S. 612, 617, 74 S.Ct. 808, 812, 98 UEd. 989).

[8] Penal Law § I25.27(l)(a)(vii) does not per-
mit or encourage arbitrary law enforcement. The
phrase “in the course of and in furtherance of’ lim-
its the types of murders that may be prosecuted as
first degree murders. The defendant can only be
charged under this statute if he has committed an
intentional murder “in the course of ... and in fur-
therance of' a felony. “In the course of’ has been
interpreted to be a durational requirement under the
statute, i.e., that the murder be committed during
the commission of a felony ( People v. Lewis. Ill
Misc.2d 682, 686, 444 N.Y.S.2d 1003; People v.
Wood, 8 N.Y.2d 48, 201 N.Y.S.2d 328, 167 N.E.2d
736). “In furtherance of’ has been interpreted as
placing “a relation requirement between the felony
and the homicide.” {People v, Lewis, supra at 686,
444 N,Y.S.2d 1003). The statute expressly sets
forth the specific enumerated felonies during which
the intentional murder was committed or attempted
to be committed, in order for the defendant to be
charged under this statute, thereby limiting the
felonies that qualify for felony murder. The defend-

ant’s conduct alleged in the Indictment tracks the
language in the statute. There is nothing to suggest
that he is being charged arbitrarily. Furthermore,
“New York law is clear that felony murder does not
embrace any killing that is coincidental with the
felony, but instead is limited to those deaths caused
by one of the felons in furtherance of their crime” (
People v. Hernandez . 82 N.Y.2d 309, 317, 604
N.Y.S.2d 524, 624 N.E.2d 661; People v. Ryan, 263
N.Y. 298, 189 N.E. 225).

[9] The defendant also seeks to dismiss or re-
duce Counts 3, 4, and 1 3 of the Indictment, which
charge the defendant with felony murder under
Penal Law § 125.25(3) on the grounds that this stat-
ute is unconstitutionally vague. Although no uni-
versal definition has been advanced by the Court of
Appeals, or any lower courts, “in the course of and
in furtherance of * has been an element of the felony
murder statute under Penal Law § 125.25(3) for
many years. Numerous **989 cases involving
felony murder have been affirmed and the constitu-
tionality of the statute has been determined ( People
v. Miller. 32 N.Y.2d 157, 344 N.Y.S.2d 342, 297
N.E.2d 85; People v. Bornholdt. 33 N.Y.2d 75, 350
N.Y.S.2d 369, 305 N.E.2d 461, cert, denied sub
nom. Victory v, New York. 416 U.S. 905, 94 S.Ct.
1609, 40 L.Ed.2d 109; People v. Stokes. 88 N.Y.2d
618, 648 N.Y.S.2d 863, 671 N.E.2d 1260; People v.
Britt , 212 A.D.2d 1034, 623 N.Y.S.2d 58 [4th
Dept. 1995]; People v, Howard. 241 A.D.2d 920,
661 N.Y.S.2d 386 [4th Dept. 1997] ). The statutory
language of Penal Law § 125,27(l)(a)(vii) is virtu-
ally identical to the language contained in Penal
Law § 125.25(3), and both statutes clearly encom-
pQSS the felony murder doctrine. Since the Court of
Appeals has not held this statute to *201 be uncon-
stitutional, and has affirmed the language of §
125.25(3) numerous times, it can be inferred that
both § 125,27(1 )(aXvii) and § 125.25(3) are clear
and not vague. What makes § I25.27(l)(a)(vii) dif-
ferent from § 125.25(3) is that the former requires
that file defendant intentionally cause the death of
another individual in the course of and in further-
ance of a felony, while the latter does not require

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1162

Page 15

175 Misc.2d 192, 664 N.Y,S.2d 981, 1997 N.Y. Slip Op. 97553
(Cite as: 175 Misc.id 192, 664 N.Y.S.2d 981)

intentional conduct. The dement of intent distin-
guishes those cases in which the death penalty may
be imposed and those in which it may not.

[10] The defendant also challenges the phrase
’'commanded another person” as being unconstitu-
tionally vague. The defendant's argument is unper-
suasive. The term “command” has been used in the
Penal Law for many years under § 20,00. This
phrase, under Penal Law § 125.27(1 )(a)(vii), limits
the application of accessorial liability to those situ-
ations where an individual commands another per-
son to intentionally cause the death of another indi-
vidual.

Here the common sense meaning of
“command” should be applied: “To direct, with au-
thority. Power to dominate and control.” {Black's
Law Dictionary, 267 [6th ed. 1990] ). The use of
the phrase “commanded another person” under the
statute is sufficient to put the defendant on notice
that it is a crime to order another person to inten-
tionally cause the death of Juan Rodriguez-Matos.
This phrase also limits the type of conduct that can
be charged under this statute by law enforcement
personnel because of the limited application of ac-
cessorial liability.

Accordingly, the defendant's motion to dismiss
or reduce Counts 3, 4, 10, and 13 of the Indictment
on the grounds that Penal Law § !25.27(l)(a)(vii)
and § 125.25(3) are unconstitutionally vague and
overbroad is denied.

E. PL § 1 25.27(1 )(a)fvli) and (xi) Unconstitu-
tional Because They Fail to Narrow the Class of
People Eligible for the Death Penalty

[! I] Penal Law § 125.27(l)(a)(vii) narrows the
class of people eligible for the death penalty for the
reasons discussed in sections A through D and sec-
tion V (omitted for purposes of publication). The
language is sufficiently specific to have placed the
defendant on notice that the offenses with which he
is charged are criminal, and the language is suffi-
cient to limit law enforcement *202 personnel from

arbitrarily charging the defendant under this statute.

The defendant’s motion to dismiss or reduce
Count 1 0 of the Indictment on the grounds that Pen-
al Law § 125.27(l)(a)(vii) fails to narrow the class
of people eligible for the death penalty is denied.
The defendant's motion to dismiss or reduce Count
10 of the Indictment on the grounds that Penal Law
§ 125.27(l)(a)(vit) is unconstitutional because it is
irrationally underinelusive, vague and overbroad,
improperly double counts the victim's death, and
fails to narrow the class of people eligible for the
death penalty is denied.

III. RETROACTIVITY

The defendant seeks dismissal of Counts 11
and 12 of the Indictment, which charge him with
Murder in the First Degree in violation of Penal
Law § 1 25.27(1 )(a)(xi). Pursuant to this section, a
person is guilty of Murder in the First Degree
when, with intent to cause the death of another per-
son, he causes such death, and;

(xi) the defendant intentionally caused the death
of two or more additional persons within the state
in separate criminal transactions within a period
of twenty-four months when committed in a sim-
ilar fashion**990 or pursuant to a common
scheme or plan; ...

Count 1 1 of the Indictment alleges that the de-
fendant intentionally caused the death of Juan
Rodriguez-Matos on November 2, 1996, and in ad-
dition, intentionally caused the deaths of Peter Hol-
ley on September 22, 1995, and Joangel Toro on
August 6, 1995, in a similar fashion within twenty-
four months prior to Matos' death. Count 12 of the
Indictment alleges the same facts as Count 11, ex-
cept this Count charges the defendant with the
death of Jovanny Diaz on August 6, 1 995. The ef-
fective date of Penal Law § 125.27(l)(a)(xi) was
September 1, 1995.

The defendant seeks dismissal of Counts 11
and 12 on the grounds that the People are improp-
erly applying Penal Law § 125.27(l)(a)(xi) rctro-

© 201 1 Thomson Reuters. No Claim to Orig. US Gov, Works.

1163

! 16

. 97553

175 Misc.2d 192, 664 N.Y,S.2d 981, 1997 N.Y. Slip Op,

(Cite as: 175 Misc.2d 192, 664 N.Y.S.2J 981)

actively. The defendant contends that by doing so,
the People are charging him with Murder in the
First Degree based partially upon acts that were al-
legedly committed prior to the effective date of the
statute. The defendant argues he should only be
prosecuted for the deaths of Joangel Toro and Jo-
vanny Diaz based on the law as it existed prior to
September 1, 1995,

[12][I3] A statute is determined to be retroact-
ive when it "looks backward or contemplates the
past, *„ or relates back *203 to a previous trans-
action and gives it a different legal effect from that
which it had under the law when it occurred” (
Black's Law Dictionary, 684 [5th ed. 1979] ). *
Generally, statutes are construed as prospective, un-
less the language of the statute, either expressly or
by necessary implication, requires that it be given a
retroactive construction/’ (McKinney's Consolid-
ated Laws of New York, Book l Statutes, § 51(b) at
87), However, the Court of Appeals has held that
"[a] statute is not retroactive ... when made to apply
to future transactions, merely because such transac-
tions relate to and are founded upon antecedent
events” ( People v. Weinberg, 83 N.Y.2d 262, 265,
609 N.Y,S.2d 155, 631 N.B.2d 97; quoting McKin-
ney’s Consolidated Laws of New York, Book 1 Stat-
utes, § 51(a) at 87).

The Legislature made the effective date of Pen-
al Law § 1 25.27(1 )(aXxi) September 1, 1995, and
stated that "offenses committed prior to such date
shall be governed by the provision of law in effect
at the time the offense was committed” (1995 N.Y,
Laws, Ch. 1 § 38). Therefore, it is clear the Legis-
lature intended for this statute to be applied pro-
spectively. It is equally clear that the People are ap-
plying the statute prospectively.

[14] [15] Penal Law § 1 25.27(1 )(a)(xi) requires
proof of two additional killings as elements of first
degree murder. Therefore, “a defendant cannot be
deemed to have committed murder in the first de-
gree until after he or she commits the third killing'*
(People v. Shulman, 172 Misc.2d 535, 658
N.Y.S.2d 794 [County Ct. Suffolk Co. 1 997] ). The

defendant did not allegedly commit first degree
murder until November 2, 1996, when Juan Rodrig-
uez-Matos' death occurred, which was well after the
date the statute became effective. The homicides of
Joangel Toro and Jovanny Diaz, which occurred on
August 6, 1995, were antecedent events that consti-
tute aggravating factors or elements necessary to
prove first degree murder. These homicides have
not been given a different legal effect by this stat-
ute. Their legal effect is that they constitute charges
for second degree murder reflected in Counts 1 and
2 of the Indictment, which is clearly the legal effect
these acts possessed prior to the effective date of
PL § 125.27(l)(a)(xi). The fact that these acts can
be used as elements or antecedent events that oc-
curred within 24 months prior to another intentional
murder to prove first degree murder does not signi-
ficantly alter their legal effect. The People are not
seeking to enhance the defendant’s possible punish-
ment if convicted for the deaths of Joangel Toro
and Jovanny Diaz because the People have charged
the defendant with second degree murder for each
victim. Therefore, if the *204 defendant is con-
victed, he would only be subject to dm punishment
requisite to those charges.

This case is analogous to People v. Weinberg ,
83 N.Y.2d 262, 609 N.Y.S.2d 155, 631 N,E.2d 97,
supra and its application is appropriate. In that
case, the defendant was charged with ’’three misde-
meanor counts of failure to file a tax return ... and
one class **991 E felony count of repeated failure
to file a tax return” under Tax Law § 1802. Id at
265, 609 N.Y.S.2d 155, 631 N.E.2d 97. The de-
fendant claimed that the Legislature did not intend
for Tax Law § 1 802 to be “applied retroactively to
a repeated failure to file returns which occurred in
part prior to the effective date of the statute.” Id.
The Court of Appeals rejected the defendant's argu-
ment and held that the statute was “not being retro-
actively applied ... in any true sense of the term”
since the statute applied to future transactions
which were “related to or founded upon antecedent
events.” Id Furthermore, the Court determined that
the defendant did not actually commit the § 1802

© 2011 Thomson Reuters, No Gaim to Orig, US Gov. Works.

1164

Page 17

97553

175 Misc.2d 192, 664N.Y,S.2d 981, 1997 N.Y. Slip Op.
(Cite as: 175 Misc.2d 192, 664 N.Y.S^J 981)

offense until he “failed to file his 1985 tax return
by April 15, 1996, having then failed to file his re-
turns for three consecutive years.” Id, at 266, 609
N.Y.S.2d 155, 631 N.E.2d 97.

In the case at bar. Penal Law § 125.27{1)(a)(xi)
applies to future transactions because the statute is
clear that in order for the defendant to be charged
with first degree murder, a third death, at a minim-
um, must occur after two or more deaths have oc-
curred. Therefore, the future transaction would be
the third death. The two or more earlier deaths that
must occur are antecedent events which are ele-
ments of the first degree murder charge. The de-
fendant can only be charged with first degree
murder for this third death. Therefore, the defend-
ant did not allegedly violate Penal Law § 125.27
(l)(a)(xi) until the third death (Juan Rodriguez-Ma-
tos) occurred on November 2, 1996.

Accordingly, that portion of the defendant's
motion seeking dismissal of Counts 11 and 12 of
the Indictment on retroactivity grounds is denied.

IV. EX POST FACTO

The defendant seeks dismissal of Counts 11
and 12 of the Indictment on the grounds that these
charges violate Article I, § 10 of the United States
Constitution, which prohibits states from enacting
ex post facto laws.

Count 1 1 of the Indictment charges the defend-
ant with intentionally causing the deaths of Juan
Rodriguez-Matos, Peter Holley, and Joangel Toro
under Penal Law § 125.27(l)(a)(xi). *205 Count 12
of the indictment is almost identical to Count 11,
except it charges the defendant with the death of
Jovanny Diaz instead of Joangel Toro under Penal
Law § 125.27(1 KaKxi).

The defendant argues that because Counts 1 1
and 12 of the Indictment contemplate past acts by
including prestatute crimes as elements of the of-
fense, the prosecution is seeking to inflict a greater
punishment upon the defendant than was permitted
by law at the time those crimes were allegedly com-

mitted, thereby violating the ex post facto clause of
the United States Constitution.

[1 6][17] In Collins v. Youngblood, 497 U.S. 37,
110 S.Ct. 2715, 111 L.Ed,2d 30, the United States
Supreme Court held that the ex post facto clause
prohibits any penal statute which “(1) punishes as a
crime an act previously committed which was inno-
cent when done ... (2) makes more burdensome the
punishment for a crime after its commission, or ...
(3) deprives one charged with crime of any defense
available according to law at the time when the act
was committed’*. Id. at 42, 110 S.Ct. at 2719.
"[SJtatutes which permit the enhancement of pun-
ishment for a present crime based upon a prior
crime, even where the prior crime occurred before
enactment of the penalty-enhancing statute” are not
encompassed in the above prohibitions (People v.
Shulman. 172 Misc.2d, at 538, 658 N.Y.S.2d 794,
supra ; Gryger v. Burke, 334 U.S. 728, 68 S.Ct.
1256, 92 L.Ed. 1683; McDonald v. Massachusetts,
180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542). Penal
Law § 125.27(l)(a)(xi) does not violate the cx post
facto clause of the United States Constitution. This
statute does not punish as a crime an act previously
committed which was innocent when done since in-
tentional murder has always been a crime. Neither
does this statute make more burdensome the pun-
ishment for a crime after its commission since once
a violation of the statute has been proven, the sen-
tence options are mandated by the statute, and arc
not enhanced or retroactively applied after a de-
termination of an individual’s guilt. The conduct for
which a defendant is charged and convicted does
not predate the effective date of the statute. **992
Furthermore, this statute does not deprive an indi-
vidual charged with a crime of a defense that was
available at the time the offense was allegedly com-
mitted.

[18] Penal Law § 12S.27(l)(a)(xi) enhances the
punishment for the present crime of first degree
murder based upon the prior two additional deaths,
even though these deaths occurred before the enact-
ment of this statute. Since there is no retroactive

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1165

Page 18

175 Misc,2d 192, 664 N.Y.S,2d 981, 1997 N.Y. Slip Op. 97553
(Cite as: J75 Misc.2d 192, 664 N.Y.S.2d 981)

application of the statute being applied in this case,
as previously discussed, the two additional deaths
are antecedent *206 events which enhance the pun-
ishment for the capital murder charge {People v.
Weinberg, 53 N.Y.2d 262, 266, 609 N.Y.S.2d 155,
631 N.E.2d 97 supra). The defendant allegedly
committed first degree murder on November 2,
1996, at the time of the alleged third killing (Juan
Rodriguez-Matos). He is also charged with second
degree murder pursuant to Penal Law § 125.25(1)
in Counts 1 and 2 of the Indictment for the deaths
of Joangel Toro and Jovanny Diaz. As such, the
sentences that apply to each violation in the event
of a conviction are the only ones that can be applied
to each violation. Penal Law § 1 25.27(1 )(a)(xi)
does not bestow upon the defendant an additional
penalty for the two predicate deaths. A sentence un-
der this statute is for a “stiffened penalty for the
latest crime, which is considered to be an aggrav-
ated offense because a repetitive one” ( People v.
Morse t 62 N.Y.2d 205, 217-218, 476 N.Y.S.2d 505,
465 N,E.2d 12, appeal dismissed sub nom. Vega
v. New York, 469 U.S. 1186, 105 S.Ct. 951, 83
L.Ed.2d 959; People v. Weinberg, 83 N.Y.2d 262,
267, 609 N.Y.S.2d 155, 631 N.E.2d 97, Gryger v.
Burke, 334 U.S. 728, 732, 68 S.Ct. 1256,
1258-1259, 92 L.Ed. 1683, supra).

New Jersey has also applied this reasoning
when deciding ex post facto challenges to capital
crime statutes. State v. Erazo, 126 N.J. 112, 594
A.2d 232 [Supreme Ct. of N.J. 1991], involved an
ex post facto challenge to the capital murdeT statute
which permits a jury to consider a defendant's prior
murder conviction a$ an aggravating factor. The
court held that “evidence of a prior murder is ad-
missible under the statute not for the purpose of
punishing the defendant for that murder, but to en-
able the jury to determine the appropriate sentence
for the present murder” at the penalty phase of the
trial ( People v. Shulman, supra at 538; quoting
State v. Erazo, 126 N.J., at 134, 594 A.2d at 243).
Pena] Law § 125.27(l)(a)(xi) requires proof of pri-
or killings as elements of first degree murder at the
guilt phase of the trial, thus there is still no ex post

facto violation since both prior killings must also be
proven.

Accordingly, that portion of the defendant's
motion seeking dismissal of Counts II and 12 of
the Indictment on ex post facto grounds is denied.

VIII. MOTION TO DISMISS COUNT 10 OF
THE INDICTMENT AS DUPLICITOUS

The defendant seeks an Order to dismiss Count
10 of the Indictment as duplicitous since it charges
him with the killing of Juan Rodriguez-Matos by
shooting him with a gun and commanding another
person to kill him. Count 10 charges the defendant
with first degree murder pursuant to Penal Law §
125.27(l)(a)(vii). The defendant contends that since
he is being *207 charged as both a shooter and a
commander, Count 10 is duplicitous. The People
have failed to specify in their Bill of Particulars
whether they arc pursuing a shooter or commander
theory of prosecution; as a result, the defendant
claims that he is prejudiced by this lack of notice,
and unable to properly prepare a defense,

[19][20][21] Pursuant to Criminal Procedure
Law § 200.30(1), each count of an indictment can
only charge one offense {People v, Palaguachi, 210
A.D.2d 436, 620 N.Y.S.2d 429 [2nd Dept.1994] ).
Criminal Procedure Law § 200.30(2) provides that
where a statute furnishes different ways of commit-
ting an offense under different subdivisions or para-
graphs, a single count may only charge one offense
pursuant to one paragraph or subdivision. An in-
dictment must also contain "[a] separate accusation
or count addressed to each offense charged, if there
be more than one” and “[a] plain concise factual
statement in each count which ... asserts facts sup-
porting every element of the offense thereof with
sufficient precision to clearly apprise the defendant
... of the conduct which is the **993 subject of the
accusation” {People v. Kemdl, 68 N.Y. 2d 410, 417,
509 N.Y.S.2d 790, 502 N.E.2d 577; quoting CPL §
200.50(3) and (7)(a)), A count which accuses a de-
fendant of more than one offense is duplicitous.

[22] Count 10 of the Indictment charges the de-

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1166

Page 19

97553

175 Misc,2d 192, 664 N.Y.S,2d 981, 1997 N.Y. Slip Op.
(Cite as: 175 Mise.2d 192, 664 N,Y.S.2d 981)

fendant with the crime of first degree murder for in-
tentionally causing the death of Juan Rodriguez Ma-
tos. The section of the taw under which the defend-
ant is charged is contained in one paragraph and
one subdivision, and charges only a single offense,
involving a single death. The facts alleged in this
Count only support one offense. Therefore, Count
10 of the Indictment does not violate the statutory
requirements set forth under Criminal Procedure
Law §§ 200.30(1), 200.30(2), 200.50(3) and 200.50
(7)(a), and is not duplicitous.

The defendant's claim that since he is being
charged as both a shooter and a commander under
Count 10, the Indictment is duplicitous, is without
merit The commander language contained in Penal
Law § I25.27(l)(a)(vii) limits the application of
Penal Law § 20.00 to that particular subdivision of
the death penalty statute. The language,
“commanded another person*’ is not an additional
element to the offense of an intentional killing in
the course of and in furtherance of a felony. Rather,
under this statute, the People may charge the de-
fendant as a principal, or m a limited situation, as
an accomplice.

[23] [24] The People do not have to specify
whether the defendant is the shooter or the com-
mander under Count 10, or in their Bill *208 of
Particulars since the manner of prosecution is the
same ( People v. Mains , 178 A.D.2d 960, 578
N.Y.S.2d 750 [4th Dept.1991] ). “For charging pur-
poses, the distinction between principal and accom-
plice is academic’'* {People v. Rivera, 84 N.Y. 2d
766, 771, 622 N.Y.S.2d 671, 646 N.E.2d 1098;
quoting People v. Guidice. 83 N.Y .2d 630, 637, 612
N.Y.S,2d 350, 634 N,E.2d 951), This is because
“[t]here is no distinction between liability as a prin-
cipal and criminal culpability as an accessory and
the status for which the defendant is convicted has
no bearing upon the theory of the prosecution” (
Rivera, supra at 768, 622 N.Y.S.2d 671, 646
N,E.2d 1098; quoting People v. Duncan, 46 N.Y.2d
74, 79-80, 412 N.Y»S,2d 833, 385 N.E,2d 572, cert .
denied Ml US, 910, 99 S.Ct. 2823, 61 L.Ed.2d

275). Count 10 of the Indictment and the Bill of
Particulars clearly set forth a single theory of pro-
secution, i.e., that the defendant intentionally
caused the death of Juan Rodrigucz-Matos in the
course of and in furtherance of Kidnapping in the
First Degree, or acting with the intent to cause the
death of Juan Rodriguez-Matos, commanded anoth-
er person to intentionally cause his death.

Accordingly, the defendant’s motion to dismiss
Count 10 of the Indictment on the ground that it is
duplicitous is denied.

IX, DISMISSAL OF THE INDICTMENT BE-
CAUSE THE DEFECTIVE PROCESS AND
RESULTING DUPLICITOUS INDICTMENT
DEMONSTRATE IMPAIRMENT OF THE IN-
TEGRITY OF THE GRAND JURY.

[25] Hie defendant seeks an Order dismissing
the Indictment on the grounds that the Grand Jury
presentation was defective, since the grand jurors
lacked proper guidance and constitutionally sound
legal instructions when they reached their charging
decision. The defendant claims that the Grand Jury
proceedings were impaired since there is no guaran-
tee that twelve grand jurors concurred when they
voted on the first degree murder charges as to the
defendant's status as principal or accomplice.

Count 10 of the Indictment charges the defend-
ant with first degree murder pursuant to Penal Law
§ 125.27(l)(aXvii) as both a principal and as an ac-
complice. As stated in VUI, supra, “there is no leg-
al distinction between liability as a principal or
criminal culpability as an accomplice” {People v.
Rivera, supra at 769). Therefore, at least twelve
grand jurors had to concur that there was sufficient
evidence to indict the defendant for the murder of
Juan Rodriguez-Matos, and sufficient instruction as
to the definition of “commanded another person”
under Penal Law § 1 25.27(1 )(a)(vii). It is irrelevant
whether some grand jurors voted **994 to indict
the defendant based upon his *209 actions as a
principal or as commander since there is no legal
distinction between the two.

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1167

Page 20

175 Misc.2d 192, 664 N.Y.S.2d 981, 1997N.Y. Slip Op. 97553
(Cite as: 375 Misc.2d 192, 664 N.Y.S.2d 981)

[26][27](28J The defendant further argues that
the crimes charged in Counts 1 1 and 1 2 cannot be
committed in a “similar fashion” if the defendant
acted as an accomplice in some of the crimes, but
as a principal in others. This argument is without
merit for similar reasons. There is no distinction
between liability as a principal or culpability as an
accomplice. Although the Grand Jury could have
found that the defendant acted as both principal and
accomplice, that fact does not make Counts 1 1 and
12 duplicitous or impair the integrity of the Grand
Jury. “An indictment charging either that [the] de-
fendant acted separately or jointly with others will
sustain a conviction based upon evidence of his
participation in the crime.” (People v. Gray, 187
A„D,2d 941, 591 N.Y.S.2d 280 [4th DepU992j;
People v. Duncan, 46 N.Y.2d 74, 79-80, 412
N Y.S.2d 833, 385 N.R2d 572, cert, denied 442
US. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 supra).

[29] ’“All that is required of an indictment is
that it provide [the] defendant with fair notice of
the charges against him. Such notice is given by an
indictment which simply charges the defendant
with a specified Penal Law violation whether the
prosecution's theory is that defendant is a principal
or an abettor.” (People v. Floyd, 1 15 A.D.2d 248,
496 N.Y.S.2d 167 [4th Dept.1985]; People v. Lic-
done, 63 A.D.2d 305, 312-313, 407 N.Y.S.2d 753
[4th Dept. 1978], afiPd 50N.Y.2d 850, 430 N.Y,S.2d
36, 407 N.E.2d 1333).

Accordingly, the defendant's motion to dismiss
the Indictment on the grounds that the process was
defective and resulted in a duplicitous Indictment,
impairing the integrity of the Grand Jury, is denied.

XL DISMISSAL OF THE INDICTMENT BE-
CAUSE THE GRAND JURY WAS ILLEG-
ALLY CONSTITUTED.

The defendant seeks an Order to dismiss the In-
dictment, pursuant to CPL 210.20 and 210.35 on
the grounds that the Grand Jury was illegally con-
stituted m violation of Article 1, §§ 1, 2, 3, 4, 5, 6,
11, 12, and 14 of the New York Constitution, Mid
the 5th, 6th, 8th, and I4th Amendments to the

United States Constitution, and Judiciary Law §§
500-527. The defendant also requests that this
Court order the Monroe County Commissioner of
Jurors, the Monroe County District Attorney, and
the State Office of Court Administration to permit
defense counsel access to any and all records and
materials related to Grand Jury selection in Monroe
County from 1977 to the present. The defendant
claims that access to this information is essential to
allow him to fully substantiate his claim that dis-
tinctive and cognizable minority groups are under-
represented in the pool *210 from which grand jur-
ors are chosen, and that Grand Jury selection was
otherwise illegally constituted. The defendant bases
this claim specifically on the fair cross section re-
quirement under the 6th Amendment and equal pro-
tection clause of the 14th Amendment,

A. Fair Cross Section Requirement.

The defendant claims that cognizable and dis-
tinctive groups have been excluded in the Monroe
County Grand Jury pool, thereby violating the fair
cross section requirement of the 6th Amendment.

[30][31] The 6th Amendment requires that a
jury be selected from a representative cross section
of the community. See Taylor v. Louisiana , 419
U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). In
Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58
L.Ed.2d 579 (1979), the Supreme Court instituted a
three-part test for jury challenges. In order to estab-
lish a prima facie case for violation of the fair cross
section requirement under the 6th Amendment, the
defendant must show: “(I) that the group alleged to
be excluded is a ‘distinctive’ group in the com-
munity; (2) that the representation of this group in
venires from which juries are selected is not fair
and reasonable in relation to the number of such
persons in the community; and (3) that this under-
representation is due to systematic exclusion of the
group in the jury-selection process.” Id. at 364, 99
S.Ct. at 668.

**995 [32] In order to establish the first prong
under the Duren test, the defendant claims that
African-Americans, Hispanics, women, poor

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1168

Page 21

97553

175 Misc,2d 192, 664 N.Y.S.2d 981, 1997 N.Y. Slip Op.
(Cite as: 175 Misc.2d 192, 664 N.Y.S.2d 981)

people, recent migrants to Monroe County, and
young people are all distinct groups within the
community, and that these groups are underrepres-
ented in the creation of the Grand Jury poo! in
Monroe County, In People v. Guzman, 60 N.Y.2d
403, 469 N.Y,S.2d 916, 457 N.E.2d 1143, cert,
denied 466 U.S. 951, 104 S.Ct. 2155, 80 L.Ed.2d
541, the Court of Appeals held that a group is dis-
tinctive if that group constitutes “a substantial and
identifiable segment of the community.” Id. at 410,
469 N,Y.S.2d 916, 457 N.E,2d 1143. “[T]o show
that a group is distinct or cognizable under the
[S]ixth [Amendment, a defendant must show: (1)
that the group is defined and limited by some factor
... (2) that a common thread or basic similarity in
attitude, ideas, or experience runs through the
group; and (3) that there is a community of interest
among members of the group such that the group's
interests cannot be adequately represented if the
group is excluded from the jury selection process.”
{Wittis v. Kemp, 838 F.2d 1510, 1514 [11th
Cir, 1988], cert, denied sub nom. Willis v. Zant, 489
U.S. 1059, 109 S.Ct. 1328, 103 L.Ed.2d 596; See
also, Barber v. Ponte, 772 F.2d 982, 986 [1st
Cir. 1 985], cert, dented 475 U.S. 1050, 106 S.Ct.
1272, 89 L.EdL2d 580). In *2UPeiers v. Ksff, 407
U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83, the Su-
preme Court held that the exclusion of distinctive
groups “deprives the jury of a perspective on hu-
man events that may have unsuspected importance
in any case that may be presented.” Id. at 503-504,
92 S.Ct. at 21 69.

[33] It has been established that African-
Americans, Hispanics, and women do constitute
distinct and cognizable groups within the com-
munity. (See e.g,. People v. Guzman , 60 N.Y. 2d
403, 469 N.Y.S.2d 916, 457 N,E.2d 1143, cerf.
denied 466 U.S. 951, 104 S.Ct. 2155, 80 L.Ed.2d
541 [Hispanics]; People v. Parks, 41 N.Y, 2d 36,
390 N.Y.S.2d 848, 359 N.E.2d 358 [women];
People v. Hobson, 227 A.D.2d 643, 643 N.Y.S.2d
610 [2nd Dept, 1996] [African-Americans] ).
However, young people grouped within an arbitrary
age range do not constitute a distinctive group with-

in the community because this group does not share
similar specific characteristics. People in an age
group which spans eleven years (18-29) have many
different attitudes, experiences, and ideas that dif-
ferentiate one individual within that age range from
another. The fact that young people share a com-
mon age or age range is insufficient to establish
young people as a distinctive group in the com-
munity, absent some other common similarity or in-
terests shared by all young people. Furthermore,
several courts have held that young people do not
constitute a distinctive group within the com-
munity. See e.g., Willis v. Kemp, supra; Brown v.
Harris, 666 F.2d 782 (2nd Cir. 1981), cert denied
456 U.S. 948, 102 S.Ct. 2017, 72 L.Ed.2d 472;
Ford v. Scabold, 841 F.2d 677 (6th Civ. 1988), cert
denied 488 U.S. 928, 109 S.Ct. 315, 102 L.Ed.2d
334; People v. Hale, 173 Misc.2d 140, 661
N.Y.S.2d 457, supra [edited for publication]
(Supreme Ct. Kings Co. 1997).

[34][35] Similarly, poor people do not consti-
tute a distinct group within the community. Poor
people are not defined and limited by some factor,
i.e., race or sex, nor is there necessarily a common
thread or basic similarity in attitudes, ideas, experi-
ences, or a community of interests. The defendant
has failed to demonstrate any of these elements.
Economic status, like age, is a flexible status,
which would not render poor people a distinct, cog-
nizable group since membership in that group may
shift from day to day. For a group to be distinct and
cognizable the membership in that group cannot
shift, or be arbitrarily selected or defined. See
United States v. Guzman, 337 F.Supp. 140, 143
(S.D.N.Y.1972), affd 468 F.2d 1245 (2nd
Cir. 1972), cert, denied 410 U.S. 937, 93 S.Ct. 1397,
35 T-.Ed.2d 602. Furthermore, several courts have
held that individuals who maintain a certain eco-
nomic status do not constitute a distinct group. (
People v. Hale, supra [poor people do not consti-
tute a distinct class]; United States v. Klesfgen, 557
F.2d 1293, 1296 (9lh Cir.1977) *212 [unemployed
not considered a distinct group]; United States v.
Marcano, 508 F.Supp. 462, 469 (D.C.P.R.1980)

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1169

Page 22

97553

175 Misc.2d 192, 664 N.Y.S.2d 981, 1997 N.Y. Slip Op.

(Cite as: 175 Misc.2d 192, 664 N.Y.S.2d 981)

[persons of working class or lower socioeconomic
status not a distinct group]; United States v.
McDaniels, 370 F.Supp. 298, 307 (E.D, Louisiana
1973), tiff'd **996509 F.2d 825 (5th Cir.1975),
cert, denied 423 U.S. 857, 96 S.Ct. 109, 46 L.Ed.2d
83 [finding that the poor, as defined by the United
States government poverty criteria, do not consti-
tute a distinctive group] ).

The defendant relies on People v. Miller, 170
Misc.2d 367, 646 N.Y.S.2d 965 [Rochester City
CL 1996], People v. Prim, 47 A.D.2d 409, 366
N.Y.S,2d 726, modified 40 N.Y.2d 946, 390
N.Y.S,2d 407, 358 N,E,2d 1033, and Thiel v. South-
ern Pacific Company, 328 U.S. 217, 66 S.Ct. 984,
90 L,Ed. 1181 for the proposition that poor people
constitute a distinctive group within the meaning of
the New York and Federal Constitutions. The de-
fendant's application of these cases is incorrect. In
Prim, the defendant challenged the entire jury panel
for similar reasons. The court ordered a hearing
without deciding the merits of the appeal since the
law which existed at the time of the defendant's tri-
al allowed women to be exempt from jury service.
Taylor v. Louisiana, supra, made such exemptions
unconstitutional. The court did not hold that poor
people constitute a distinct group within the com-
munity. Miller and Thiel held that discrimination
against individuals living below the poverty level in
the manner in which jurors were selected was un-
justified. Neither case held that poor people consti-
tute a distinctive group within the community.

[36] The defendant has failed to demonstrate
that recent migrants to Monroe County constitute a
distinct group within the community. He has
brought forward no evidence to establish that this
group is defined or limited by some factor, or that a
common thread or similarity in attitudes and ideas
exist among this group, or that there is a com-
munity of interests.

Clearly, young people, poor people, and recent
migrants to Monroe County cannot be prohibited by
the state from participating in the jury process.
"However, a distinction must be made between

’mere statistical, imbalances' and true discrimina-
tion.’* {People v. Hale, 173 Misc.2d 140, 661
N.Y.S.2d 457 [Supreme Ct. Kings Co. 1997]; quot-
ing Barber v. Ponte, 111 F.2d 982, 1000 supra).
“Unless one is prepared to say that there is an af-
firmative constitutional duty to produce a true
cross-section on the venire for every imaginable
group that exists in our complex society, something
which no court has even come close to holding, we
should avoid the overwhelming problems and the
sterile solutions that will result from attempting to
*2X3 subdivide a continuum of ages [and economic
status] into distinctive groups." Id.

Since this Court has found that African-
Americans, Hispanics, and women are distinct and
cognizable groups within the community, the
second and third prongs of the Duren test must be
analyzed only in regard to these groups.

[37] The defendant claims that underrepresent-
ation of African-Americans, Hispanics, and women
is unfair and unreasonable in relation to the number
of such persons in Monroe County. To prove this
second prong of the Duren test, the defendant relics
on statistics to demonstrate that the source lists
used to formulate jury pools in Monroe County are
underrepresentative of these distinct groups. In re-
viewing the statistical analysis supplied by Ihe de-
fendant, this Court finds that these statistics are not
persuasive to establish the second prong of the
Duren test, or to warrant dismissal of the Indict-
ment.

[38] [39] The defendant has also failed to estab-
lish that African-Americans, Hispanics, and women
are systematically excluded from the jury selection
process. "Systematic exclusion means exclusion ac-
complished by a means ‘inherent in the particular
jury selection process utilized. ’ ” {People v. Hale ,
supra; quoting People v. Guzman, supra, 60
N.Y.2d, at 411, 469 N.Y.S.2d 916, 457 N.E.2d
1143). The exclusion of a distinctive and cogniz-
able group “must have been caused by the process
used to select the jury pool.” ( People v. Hale, supra
173 Mi$c,2d 140, 661 N.Y.S.2d 457). The jmy pool

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1170

Page 23

175 M*sc,2d 192, 664 N.Y.S.2d 981, 1997 N.Y. Slip Op. 97553
(Cite as: 175 Misc.2d 192, 664 RY.S.2d 981)

in Monroe County is comprised of random and fa-
cially neutral lists of people who are registered to
vote, pay taxes, have a driver's license, and, since
April of 1995, receive state unemployment benefits.
The defendant claims that since members of a dis-
tinct group within the community are underrepres-
ented on the source lists in proportion to their pres-
ence in the community, the use of these lists to
comprise**997 the jury pools constitutes systemat-
ic exclusion. This argument is unpersuasive. The
behavior of members of these groups is unrelated
and irrelevant to any state action, and does not
prove that these groups are being systematically ex-
cluded, The fact that “some groups may not vote in
the same numbers as others, or may not have as
many licensed drivers as others, docs not lead to the
conclusion that the facially neutral and random sys-
tem used in (Monroe County) causes *214 system-
atic exclusion of these groups,” {People v. Hale,
supra, 173 Misc.2d 140, 661 N.Y.S.2d 457; see
also, People v. Betancourt, 153 A.D.2d 750,
753-754, 545 N.Y.$.2d 207 [2nd Dcpt.1989];
People v. Gregory ZZ, 134 A.D.2d 814, 815, 521
N.Y.S.2d 873 (3rd Dept. 1987]; People v. Cowan,
111 A.D.2d 343, 344, 489 N.Y.S.2d 325 [2nd
Dept. 1985] ).

[40] Clearly, a true cross section of the com-
munity is virtually unattainable since individuals do
not serve on a jury for a wide variety of reasons,
such as physical impairments, hearing impairments,
and difficulty understanding the English language.
The system is clearly open to all individuals, as
long as the state does not prevent people from
serving on a jury or discriminate against any indi-
viduals. (. People v. Hale , supra; Barber v. Pottle ,
772 F.2d 982, 997 (1st Cir.1985, supra)). The pro-
cess used to select Grand Jurors in Monroe County
involves facially neutral and random selection from
a variety of nondiscriminatory source lists. The pro-
cess is designed to achieve a fair cross section of
the community to the greatest extent possible, and
does not discriminate against any distinctive and
cognizable group within the community. Therefore,
the defendant has failed to establish a prima facie

violation of his right to a fair cross section under
the 6th Amendment.

B. Equal -Protection

The defendant also challenges the Grand Jury
selection process on the grounds that the intentional
discriminatory exclusion of distinct and cognizable
groups from Grand Jury service violates his right to
equal protection under the 5th and 14th Amend-
ments. The People claim that the defendant is not a
member of any distinct or cognizable group, and
lacks standing to assert this claim.

[41] Clearly, the defendant is a Hispanic male,
and Hispanics have been identified as a distinct and
cognizable group. Therefore, the defendant does
have standing to assert this claim. However, the de-
fendant's claim is without merit.

[42] [43] In order to establish a prima facie vi-
olation of the right to equal protection, the defend-
ant must establish that: (1) recognizable and dis-
tinct classes have been singled out for different
treatment under the laws, as written and applied;
(2) a substantial degree of underrepresentation of
distinctive groups on grand juries has occurred over
a significant period of time; and (3) the Grand Jury
selection procedure is not racially *215 neutral and
is susceptible to abuse. [Castaneda v. Parti da, 430
U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d
498; People v. Guzman, supra , 60 N.Y.2d 403, 469
N.Y.S.2d 916, 457 N.E,2d 1143). As previously
stated, the defendant has failed to establish that the
Grand Jury selection process utilized in Monroe
County is discriminatory or systematically excludes
any distinct or cognizable groups. The selection
process used in Monroe County is fair and reason-
able and does not discriminate against any distinct
groups. There is no evidence of substantial under-
representation of a distinct and cognizable group
over a significant period of time in Monroe County.
The defendant has failed to satisfy the elements re-
quired in order to establish a prima facie violation
of his right to equal protection.

Accordingly, the defendant's motion to dismiss

© 201 1 Thomson Reuters, No Claim to Orig. US Gov. Works.

1171

Page 24

175 Misc.2d 192, 664 N.Y.S.2d 981, 1997 N.Y. Slip Op. 97553
(Cite as : 175 Misc.2d 192, 664 N.Y.S.2d 981)

the Indictment, and bis request for records related
to Grand Jury selection in Monroe County, as well
as an evidentiary hearing is denied in all respects,

MOTION TO DISMISS COUNTS U AND 12
OF THE INDICTMENT PURSUANT TO CPL
ARTICLE 210 (AM-8)

MOTION TO DECLARE PENAL LAW §
1 25.2 7(l)(a)(xi), THE “SERIAL KILLER” AG-
GRAVATING FACTOR , UNCONSTITUTION-
AL, FACIALLY AND AS APPLIED , AND TO
PRECLUDE ITS APPLICATION AT BAR
(AM-9)

The defendant seeks an order declaring Penal
Law § 125.27(l)(a)(xi), the “serial killer" aggravat-
ing factor, unconstitutional as **998 applied in this
case and on its face. The statute must be presumed
constitutional and valid ( Weems v. United States,
217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793). The de-
fendant shoulders the burden to prove beyond a
reasonable doubt that it is not ( People v. Scalza, 76
N.Y.2d 604, 562 N.Y.S.2d 14, 563 N.E.2d 705).
The relevant portion of this statute states that “the
defendant intentionally caused the death of two or
more additional persons within the state in separate
criminal transactions within a period of twenty-four
months when committed in a similar fashion or
pursuant to a common scheme or plan”. (Penal
Law § !25.27[l][a][xi]). The People have elected to
proceed on the theory that the defendant acted in a
similar fashion. It is the defendant's position that
similar fashion is unconstitutionally vague and
overbroad under the 4th, 5th, 6th, 8 th and 14th
Amendments to the United States Constitution; Art-
icle I, Sections 1, 2, 3, 4, 5, 6, 1 1, 12 and t4 of the
New York State Constitution; Civil Rights Law
Section 13; and Judiciary Law Section 500.

Neither the death penalty legislation, nor the
Penal Law, nor the Criminal Procedure Law, nor
the Criminal Jury *216 Instructions, defines the
term in a similar fashion. The defendant claims,
therefore, that the phrase is standardless and fails to
adequately inform a jury what they must find in or-

der to determine if the People have established the
necessary serial killer aggravating factor which
narrows the class of persons eligible for the death
penalty under this subdivision (Zant v. Stephens,
462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed2d 235). Un-
derstandably, in instructing the Grand Jury, the pro-
secutor presented no definition of similar fashion
or pursuant to a common scheme or plan .

Because of the lack of legislative definition of
this term, reference to public pronouncements to
determine legislative intent is helpful. According to
the memorandum of the Assembly Codes Commit-
tee of March 6, 1995 (at 1, 3), this subdivision was
directed at “intentional murders that qualify under
the statute ... (as) serial murders”. Governor Pataki
described this section as applicable to serial mur-
derers in his March 7, 1995 approval memorandum.
Therefore, it appears clear that this subdivision re-
flects an executive and legislative intent to deal
with serial murders.

The enactment draws a distinction between
murders committed in a similar fashion and those
committed pursuant to a common scheme or plan.
This presumably is not a distinction without a dif-
ference. Analogous distinction has been drawn in
law between modus operandi and common scheme
or plan. Modus operandi refers to the method used
in the commission of the crime. When crimes have
a similar modus operandi, their method of commis-
sion is said to follow a repetitive pattern (, People v.
Fiore, 34 N.Y.2d 81, 87, 356 N.Y,S.2d 38, 312
N.E.2d 174; People v. Ream, 57 N.Y. 2d 241, 253,
455 N.Y-S.2d 575, 441 N.B.2d 1093). The determ-
ination of modus operandi depends on the totality
of the circumstances and the degree of similarity in
the method of commission. When a series of crimes
are committed in a similar fashion, they have a sim-
ilar modus operandi (Black's Law Dictionary, 1 004,
6th ed 1990). A pattern is a “reliable sample of
traits, acts or other observable features” (Black's
Law Dictionary, 1127, 6th ed. 1990). Similar means
“nearly corresponding; resembling in many re-
spects; somewhat like; having a general likeness.

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1172

Page 25

175 Misc.2d 192* 664 N.Y.S,2d981, 1997 N.Y. Slip Op. 97553
(Cite as; 175 Misc.2d 192, 664 N„Y«&2d 981)

although allowing for some degree of difference” (
Black's Law Dictionary, 1383, 6th ed. 1990).
“Similarity is not identity, but resemblance between
things" ( United States v. Raynor, 302 U.S. 540,
547, 58 S.Ct 353, 356, 82 L.Bd. 413). In discussing
the evidentiary standard for proof of other crimes,
Wigmore calls the concept similarity a ‘'flexible
principle ” and adds: “[l]t is just this requirement of
similarity which leaves so much room for differ-
ence of opinion, and accounts for the variances
*217 of rulings in the different jurisdictions and
even in the same jurisdiction and in cases of the
same offense” ( 2 fVtgmore Evidence, § 302, at 246
[Chadboum rev.ed. 1979]).

The People maintain that similar “includes a
spectrum of meanings between the poles of same
and different” (Answering Affirmation, AM-9).
The breadth of distance between same and different
and the bewildering variances of rulings as de-
scribed by Wigmore make it obvious that clear and
objective standards providing specific and detailed
guidance to a jury is questionable given the lack
**999 of clarity in this statute {Gregg v. Georgia,
428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Prof-
fitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49
LdBcUd 913; Godfrey v. Georgia, 446 U.S. 420,
100 S.Ct. 1759, 64 L.Ed.2d 398). Not lost on this
Court is the significant absence in the Practice
Commentaries to Penal Law § 125.27(i)(a)(xi) and
the Criminal Jury Instructions of a recommended
definition of similar fashion.

The People urge that the term similar fashion
has a commonsense core of meaning ( Jurek v.
Texas, 428 U.S. 262, 96 S.Ct 2950, 49 L.Bd, 2d
929) and is, therefore, easily understood by defend-
ants and juries. The People also contend that the
term serial killer does not requite any more than a
showing of a consecutive number of killings. Cer-
tainly the context in which the statute was debated
and passed by the Legislature, signed into law by
the Governor and promoted by those two branches
of government was aimed at protecting the public
from the Son of Sam, Ted Bundy and Arthur Shaw-

cross'typc serial killers. They are generally defined
as persons who commit several homicides, separ-
ated in time and frequently in different geographic
locations. Most are serial sexual killers who are
compelled to exercise absolute control, both physic-
al and menial, before inflicting torture, pain and ul-
timate death. The manner in which death is inflicted
is frequently characterized by a ritualistic signature
aspect, i.e. mutilation, cannibalism, sexual contact.
Firearms arc the least common weapons used by
such serial killers. Finally, the crime scenes of the
killers tend to be similar, using the same method of
killing and similar crime scene arrangements
(Blinder Psychiatry in the Everyday Practice of
Law, 3rd ed., Clark, Boardman, Callahan Cumulat-
ive Supplement, August, 1996).

[44] In alleging that the four murders set forth
in Counts 11 & 12 were committed in a similar
fashion, the People advance these similarities: All
involved young men, shot with firearms to the left
side of the head, on the west side of the City of
Rochester, and in a cold-blooded fashion.

However, as the People also acknowledge, dis-
similarities are important in analyzing the serial
murder allegation: Victims: *218 One victim was a
16 year old African-American male. Three were 19-
to 20-ycar old male Hispanics. Instrumentalities: a
.45 caliber handgun, a .357 caliber handgun, a .25
caliber handgun and a 12-gauge shotgun. Motives:
One contract shooting that began as a kneecapping
and resulted in a homicide; one unplanned victim
who was a companion of the contract shooting vic-
tim; one drive- by shooting as revenge for an earlier
robbery committed by the victim and one shooting
driven by the defendant's desire to locate a former
girlfriend. Defendant as Shooter ; The defendant is
alleged to be the shooter of the companion to the
contract shooting victim and in the drive-by shoot-
ing. An unindicted accomplice is alleged to have
shot the contract victim. The People are unsure if
the defendant shot or commanded the shooting of
the 4th victim. Wounds: One with shotgun wounds
to the neck in the drive- by: one with multiple gun-

© 201 1 Thomson Reuters. No Claim to Oiig. US Gov. Works.

1173

Page 26

975 S3

175 Misc.2d 192, 664 N.Y.S.2d 981, 1997 N.Y. Slip Op.
(Cite as: 175 MIse.2d 192, 664 N.Y.S.2d 981)

shot wounds to the head, abdomen, chest and neck;
one with multiple gunshot wounds to the head,
chest and hip; and one with a single shot to the
head whose head thereafter was covered with a
plastic bag. Location: Two on a public sidewalk
during the same incident; one as he sat in a car on a
public street and one in the defendant’s basement
while handcuffed and blindfolded.

The People argue that the common element of
death by gunshot makes these four homicides serial
killings of a similar fashion. They a&k this Court to
reject a A folineux standard ( People v. Molineux ,
168 N.Y, 264, 61 N.E. 286) in interpreting similar
fashion and accept a spectrum of meanings between
the poles of same and different .

The reliance of the People on People v. Con-
don, 26 N.Y. 2d 139, 309 N.Y.S.2d 152, 257 N.E.2d
6 1 5 to support their position that similarity should
not be confused with modus uperandi is question-
able. The Condon court specifically noted that the
signature- type crimes of a serial killer (i.e. Jack the
Ripper) could establish such unique characteristics
that proof of similar acts of the defendant would be
probative of the fact that he committed the crime
alleged.

There is nothing so unique, ritualistic, signa-
ture-like about these homicides that would support
the Grand Jury’s decision to indict **1000 the de-
fendant under this statute. Even the geographical
similarities of the homicide locations proffered by
the People are not obvious from a review of the
Grand Jury minutes.

To accept the examples of similarity presented
by the People, a person who shoots the requisite
number of victims within the city limits during the
prescribed period, thereby causing their *219 death,
would fit the definition of a serial killer for pur-
poses of this statute. Clearly, the Legislature did
not intend such a result.

Under the facts of this case, viewed in the light
most favorable to the People {People v.

Mikuszewski, 73 N.Y.2d 407, 541 N.Y.S.2d 196,
538 N.E. 2d 1017), the evidence before the Grand
Jury was insufficient to establish the similar fash-
ion element of the statute. In fact, the statute was
read to the Grand Jury with no distinction made
between similar fashion and common scheme or
plan. The People, in their response to the defend-
ant’s Request for a Bill of Particulars, elected to
proceed on the theory that the homicides "were com-
mitted in a similar fashion.

Whether the Grand Jury voted to indict on sim-
ilar fashion or common scheme or plan is, there-
fore, not clear from the Grand Jury minutes. The
two concepts are quite different from each other as
both sides agree. There was, however, insufficient
evidence presented to support a theory of Murder in
the First Degree under either theory.

Accordingly, the defendant's motion to dismiss
Counts 1 1 and 12 as not being supported by legally
sufficient evidence is in all respects granted.

While the vagueness of the law concerning
similar fashion underscores “several difficult issues
that remain to be resolved in its application” (When
the Cheering Stopped: An Overview and Analysis of
Nesv York's Death Penalty Legislation, 17 Pace
L.Rev. 41, 85 [1996]), it does not appear to this
Court that this portion of the statute should be
struck down on constitutional grounds by a trial
level judge (McKinney's Cons.Laws of N.Y., Book
1. Statutes § 150; People v. Smith, 63 N.Y.2J 41,
479 N.Y.S.2d 706, 468 N.E.2d 879; People y. Dav-
is, 43 N.Y.2d 17, 400 N.Y.S.2d 735, 371 N.E.2d
456, cert, denied 435 U.S. 998, 98 S.Ct. 1653, 56
L.Ed.2d 88; People v, McIntosh , 173 Misc.2d 727,
662 N.Y.S.2d 214 [County Ct. Dutchess County
1997] ) at this point in the proceedings of this case.

Since this Court is dismissing Counts 1 1 and
12 on insufficiency of the Grand Jury minutes, this
Court need not reach the constitutional issues raised
by the defendant in this and other motions nor the
multiplicitous issues raised by the defendant in
AM-7.

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1174

Page 27

97553

175 Misc.2d 192, 664 N.Y.S.2d 981, 1997 N.Y. Slip Op.
(Cite as: 175 Misc.2d 192, 664 N.Y.S.2d 981)

Pursuant to Article 210 of the Criminal Proced-
ure Law, various defense motions have been made
to inspect the Grand Jury minutes and dismiss the
Indictment herein on grounds alleging insufficiency
of evidence presented and legal instructions given,
as well as other improprieties in the presentation of
the case to the Grand Jury.

*220 The Court has granted the motion to in-
spect the Grand Jury minutes and has already ruled
in this Decision regarding Counts 11 and 12. The
remaining Counts in the Indictment were suffi-
ciently supported by competent and admissible
evidence. The legal instructions provided to the
Grand Jury were proper. The remaining defense
challenges to the manner of presentment are
without merit.

Accordingly, except as hereinabove described,
the defendant's motion to dismiss the Indictment is
denied.

MOTION TO INVALIDATE THE BAR ON
CHALLENGING AGGRAVATING FACTORS
UNDER CRIMINAL PROCEDURE LAW §
400.27(3) (AM-10)

The defendant seeks an Order declaring CPL §
400.27(3) unconstitutional on its face and as ap-
plied to this case and further requests an Order
striking the District Attorney's Notice of Intent to
Seek the Death Penalty. He also seeks an Order in-
validating CPL § 400.27 to the extent it bars the de-
fense from challenging aggravating factors at a sen-
tencing proceeding. The People oppose that applic-
ation and claim the defendant’s motion is premature
until such time as the sentencing of the defendant is
at issue.

The language of the statute in question spe-
cifically prevents the District Attorney from intro-
ducing evidence about aggravating factors at the
sentencing phase of the trial concerning aggravat-
ing factors it did not **1001 prove at the guilt
phase of the trial. That limitation inures to the be-
nefit of the defendant since it prevents the People,

except in two specific circumstances, from introdu-
cing any evidence about additional aggravating
factors. The People are, therefore, limited to
presenting evidence to rebut mitigating evidence
presented by the defendant.

[45] Here, the defendant does not meet his bur-
den to demonstrate the unconstitutionality of the
statute beyond a reasonable doubt {Weems v. United
States , 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793;
People v. Bright, 71 N.Y.2d 376, 526 N.Y.S.2d 66,
520 N.E.2d 1355; People v. Pagnotta, 25 N.Y.2d
333, 305 N_Y.S.2d 484, 253 N.E.2d 202). The New
York sentencing provisions exceed the require-
ments of the New York and United States Constitu-
tions. The provisions “genuinely nanow the class
of persons eligible for the death penalty” 1 and reas-
onably justify the imposition of a death sentence in
those appropriate cases ( Lowenfteld v. Phelps, 484
U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568;
Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77
L.Ed.2d 235). Although this Courts feels the applic-
ation of the defendant is ripe for decision at this
point, this Court feels the defendant lias not estab-
lished sufficient grounds to grant the application
sought and, therefore, his motion in this regard is
denied.

*221 COUNT 10 OF THE INDICTMENT
SHOULD BE DISMISSED PURSUANT TO
CPL 210.25(1) BECAUSE IT DOES NOT AS-
SERT FACTS INCLUDING EVERY ELE-
MENT OF THE OFFENSE CHARGED
(AM-11)

[46] The defendant seeks an Order from this
Court dismissing Count 10 of the Indictment ou the
grounds that it is defective because it does not set
forth sufficient factual allegations establishing how
the defendant commanded the death of Juan
Rodriquez-Metos, The defendant's arguments in
support of this application are without merit. The
case law concerning indictments that track the lan-
guage of a particular statute makes it clear that
Count 10 of the Indictment is sufficient on its face (
People v. Ray, 71 N.Y.2d 849, 527 N.Y.S.2d 740,

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works,

1175

Page 28

175 Misc.2d 192, 664 N.Y.S.2d 981, 1997 N.Y. Slip Op. 97553
(Cite as: 175 Misc.2d 192, 664 N.Y.S.2d 981)

522 N.E.2d 1037; People v. Cohen, 52 N.Y.2d 584,
439 N.Y.S.2d 321, 421 N.E.2d 813; People v. Ian-
none , 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384
N.E.2d 656).

Accordingly, the Defendant’s application in this
regard is in all respects denied.

MOTION TO DECLARE PENAL LAW §
1 25. 2 7(I)(a)( vii), THE “ COMMANDER »
FELONY-MURDER AGGRAVATING

FACTOR, UNCONSTITUTIONAL, FACIALLY
AND AS APPLIED, AND TO PRECLUDE ITS
APPLICATION AT BAR (AM-12)

The defendant seeks an order from this Court
invalidating the commander portion of Penal Low §
1 25,27(1 )(a)( vii) as vague and overbroad under the
8th and 14th Amendments.

The defendant herein is charged as both the
principal and under the commander liability theory
for the death of Juan Rodriguez-Matos. The People
contend that the defendant either shot Mr. Rodrig-
uez- Matos himself or ordered another to shoot him.

As previously noted in this Decision, the word
command has a long history in New York jurispru-
dence. There is nothing to indicate that the Legis-
lature intended to give a different meaning to that
word than its ordinary meaning ( People v. Cruz, 48
N.Y.2d 419, 423 N.Y.S.2d 625, 399 N.E.2d 513).
The defendant has not met his burden of proving
beyond a reasonable doubt that the term command
is unconstitutionally vague, ( People v. Pagnotia, 25
N:Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202)
and, therefore, his motion to declare the command -
er aggravating factor unconstitutionally vague is
hereby denied.

MOTION TO CHALLENGE THE CONSTITU-
TIONALITY OF DEFENDANTS ARREST
AND TO SUPPRESS ILLEGALLY OBTAINED
EVIDENCE (AM-13)

[47][48] This Court has examined both search
warrants and their applications that arc the subject

of this motion. The applications *222 for both war-
rants were sufficient to establish probable cause for
the issuance of the warrant. Both prongs of the
Aguilar-Spinelli test were satisfied. The basis of
**1002 knowledge of Monica Szlekavics was
grounded on her firsthand observations. Her admis-
sions to Inv. Sheridan were not only corroborated
by his knowledge of the nonpublic aspects of the
investigation but also were statements made against
her penal interest (People v. Elwell. 50 N.Y.2d 231,
428 N.Y.S,2d 655, 406 N.E.2d 471; People v. Mc-
Cann, 85 N.Y. 2d 951, 626 N.Y.S.2d 1006, 650
N.E.2d 853). The claimed inconsistencies in Ms.
Szlekovics' statements do not justify this Court
holding hearings pursuant to Franks v. Delaware,
438 U.S. 154, 98 S.Ct 2674, 57 L.Ed.2d 667 or
People v. Alfmito, 16 N.Y.2d 181, 264 N.Y.S.2(I
243, 21 1 N.E.2d 644. The defendant's papers do not
allege any facts supporting a conclusion that per-
jurious statements were contained in Inv. Sheridan's
search warrant application before the issuing Ma-
gistrate.

(49} An examination of the “four comers” of
the warrants in question and their applications
demonstrate that the warrants were properly issued
and the returns filed demonstrate that the items
taken were properly taken under the warrants. The
items objected to by the defense seized beyond the
enumerated items in the warrant did constitute evid-
ence of a crime seen in plain view by the executing
officers, who were legally in a position to view
those items during their search (Coolidge v. New
Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29
L.Ed.2d 564; U.S. v. Truiti, 521 F.2d 1174 (6th
Cir.1975)).

Accordingly, the defendant's motion to sup-
press those items is in all respects denied.

MOTION FOR AN ORDER PROHIBITING
IMPROPER AND UNDULY PREJUDICIAL
JOINDER OF UNRELATED OFFENSES
PURSUANT TO CPL § 200.20 (AM-16)

[50] Counts 1 through 4 of the Indictment

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1176

Page 29

175 Misc.2d 192, 664 N.Y.S.2d 981, 1997 N.Y. Slip Op. 97553
(Cite as: 175 Misc,2d 192, 664 N.Y,S.2d 981)

herein deal with offenses which are alleged to have
occurred on August 6, 1995. Count 5 deals with
events of September 22, 1995. Counts 6 through 9
deal with events of October 11, 1996. Counts 10
through H deal with events of November 2, 1996.
Finally, Counts 15 through 22 deal with events of
November 6, 1996. The defendant moves to sever
each of these calendared events from the others so
that a separate trial will occur for each count or
series of counts as they apply to each day listed in
the Indictment. The People argue that the events of
October 11, 1996, November 2, 1996 and Novem-
ber 6, 1996 are joinablc under CPL § 200.20(2)(a).
The Court has ruled earlier in this opinion granting
the motion of the defendant dismissing Counts
*223 11 and 12 of the Indictment on the grounds
that the evidence before the Grand Jury was insuffi-
cient to support those Counts. In order for this
Court to find that the events of August 6, 1995 and
September 22, 1995 are joinable with each other
and with the later events of October 11, 1996,
November 2, 1996 and November 6, 1996 the
"serial killer” aspect of the Penal Law § 125.27
would have to apply. Since the Court has rulpd that
there was insufficient evidence before the Grand
Jury on this issue, the only basis for joining the
events of August 6, 1995 and September 22, 1995
with those of October 1 1, 1996, November 2, 1996
and November 6, 1996 would be CPL § 200.20(3).
The Court finds no such basis and orders that
Counts 1 through 5 of the Indictment be severed
and tried separately from the remaining counts of
the Indictment. Counts 6-10 and 13-22 shall not be
severed 'and shall be tried jointly on the grounds
that they are properly joined under CPL § 200.20
(2)(a).

BILL OF PARTICULARS RESPONSE

(AM-17)

[51] In crafting the death penalty law, the Le-
gislature declined to change the Discovery and Bill
of Particulars provisions of the Criminal Procedure
Law. The People, in their response to the defense
request for expanded Bill of Particulars informa-

tion, rely on the obligations as delineated by CPL §
200.95. This Court's review of the People's re-
sponse supports their position.

Accordingly the defendant's motion to compel
a further response to the Request for a Bill of Par-
ticulars is hereby denied.

The People also indicate in their response that
they will continue their on-going duty to supply
Brady material as, and if, it comes into their posses-
sion.

**1003 MOTION CHALLENGING INSTRUC-
TION ON SENTENCING CONSEQUENCES
OF JURY DEADLOCK PURSUANT TO CRIM-
INAL PROCEDURE LAW § 400.27(10)
(AM-22)

The defendant seeks an Order declaring Crim-
inal Procedure Law § 400.27(10) unconstitutional
to the extent that it requires the court to instruct the
capital sentencing jury that the defendant will re-
ceive a sentence with a minimum term of between
20 to 25 years and a maximum term of life if the
jury fails to unanimously agree on a penalty phase
verdict.

Criminal Procedure Law § 400.27(10)

provides, in pertinent part, that the court "... must
instruct the jury that with respect to each count of
murder *224 in the first degree the jury should con-
sider whether or not a sentence of death should be
imposed and whether or not a sentence of life im-
prisonment without parole should be imposed, and
that the jury must be unanimous with respect to
either sentence”. The same section goes on to
provide that in the event that the jury cannot reach a
unanimous agreement as to whether the defendant
should be sentenced to death or life imprisonment
without parole, that the court will "... sentence the
defendant to a term of imprisonment with a minim-
um term of between twenty and twenty-five yearn
and a maximum term of life,”

[52j The defendant argues that the instruction

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1177

Page 30

. 97553

175 Misc.2d 192 , 664 N.Y.S.2d 981, 1997 N.Y. Slip Op.
(Cite as: 175 Misc,2d 192, 664 N.Y.S.2d 981)

by the court that their failure to act unanimously
could result in the defendant's ultimate release from
prison will have a coercive effect on the jury and
result in a more likely verdict of death, thus de-
priving the defendant of his constitutional protec-
tions guaranteed in the 8th and 14th Amendments
of the United States Constitution.

The instruction contemplated in Criminal Pro-
cedure Law § 400,27(10) is similar to that required
in the State of New Jersey (N.J.S.A. § 2C: 1 1 -3 [f] ).
This section of the New Jersey Death Penalty Stat-
ute has been constitutionally examined by the New
Jersey Supreme Court under both the United States
Constitution and the Constitution of the State of
New Jersey and no violation of either constitution
was found ( State v. Brown, 138 N.J. 481, 651 A.2d
19 [1994]; Slate v. Rammtr, 106 N.J. 123, 524
A.2d 188 [1987] ). This Court agrees with the ana-
lysis of the New Jersey appellate courts in this re-
gard.

Accordingly, the defendant’s motion on this is-
sue is denied.

MOTION CHALLENGING CRIMINAL PRO-
CEDURE LAW §§ 400,27(14) AND 240.45

(2) (a) (AM-23)

[53] Criminal Procedure Law § 400.27
(]4)(aXii) incorporates the commonly known
"reverse’" Rosario discovery provision into the sen-
tencing proceeding in a death eligible case. The de-
fendant argues that such incorporation unduly re-
stricts the ability to present a complete and thor-
ough defense and will have an unconstitutional
chilling effect on his sentencing phase strategy and
presentation. Such claim is without merit. The
"reverse” Rosario rule does not violate constitu-
tional rights (People v. Copicotto, 50 N.Y.2d 222,
428 N.Y,S.2d 649, 406 N.E,2d 465); see also Willi-
ams v. Florida, 399 U.S, 78, 90 S.Ct. 1893, 26
L.Kd,2d 446 where Florida's requirement that the
defendant disclose the names of alibi witnesses was
upheld.

Accordingly, the defendant's motion in this re-
gard is denied.

*225 MOTION CHALLENGING BURDEN OF
PROOF IMPOSED UPON DEFENDANT PUR-
SUANT TO CRIMINAL PROCEDURE LAW §
400.27(6) (AM-24)

MOTION CHALLENGING APPLICA TION OF
RULES OF EVIDENCE, PURSUANT TO
CRIMINAL PROCEDURE LAW § 400.27(6),
TO DEFENDANT'S RIGHT TO PRESENT
MITIGATING EVIDENCE (AM-25)

[54] Criminal Procedure Law § 400.27(6)
provides that the burden of establishing mitigating
factors is on the defendant and must be proven by a
preponderance of the evidence. The Section further
provides that the rules of evidence shall apply to
the defendant’s presentation of evidence regarding
mitigating factors set forth in subdivision 9 of
400.27, and allows for the admission of reliable
hearsay.

The defendant maintains that requiring him to
prove his mitigating factors by a preponderance of
the evidence increases the **1004 likelihood of an
erroneous application of the death penalty. He ar-
gues that application of the “by a preponderance of
the evidence” standard would lead to the preclusion
of relevant mitigating evidence that could tip the
scales in favor of a sentence of life without parole,
citing Eddings v. Oklahoma, 455 U.S, 104, 102
S.Ct. 869, 71 L.Ed.2d 1. The United States Su-
preme Court has specifically considered the ques-
tion of a defendant bearing that burden of proof at
the sentencing phase of a capital murder case and
has upheld the constitutionality of such a senten-
cing scheme ( Waftort v. Arizona, 497 U.S. 639, 1 10
S.Ct 3047. Ill L.Ed.2d 511).

[55] The defendant’s argument is that the rigid
application of the rules of evidence or the insistence
upon "reliable hearsay” will deprive the defendant
of his slate and federal constitutional rights to due
process. This argument is without merit. The rules

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1178

Page 3 1

97553

175 M«sc.2d 192, 664 N.Y.S.2d 981, 1997 N.Y. Slip Op.
(Cite as: 175 Misc.2d 192, 664 N.Y.S.2d 981)

of evidence are intended to insure that reliable and
relevant information is introduced in a legal pro-
ceeding and the Supreme Court of the United States
has consistently held that evidence presented during
the sentencing phase be both relevant and reliable (
Green v. Georgia, 442 U.S, 95, 99 S.Ct. 2150, 60
L.Ed.2d 738; Chambers v, Mississippi, 410 U.S.
284, 93 S.Ct. 1038, 35 L.Ed.2d 297).

Accordingly, the defendant's motions on these
issues are denied.

*226 MOTION CHALLENGING VAGUE AND
STANDARDLESS SECOND-STEP SENTEN-
CING DETERMINATION AND INSTRUC-
TION THAT JURORS MAY CONSIDER MIT-
IGATING FACTOR PURSUANT TO CRIMIN-
AL PROCEDURE LAW § 400.27(1 1) (AM-26)

Criminal Procedure Law § 400,27(U)(a)
provides that the sentencing jury must first weigh
aggravating and mitigating circumstances and then
reach a unanimous decision as to whether death is
an appropriate punishment. The defendant argues
that this particular language provides no guidance
to the jury and is thus unconstitutionally vague and
would lead to a substantial risk that the death pen-
alty would be imposed in an arbitrary and capri-
cious manner.

[56][57J It is the burden of the state to insure
that the process involved in sentencing is structured
so as to guard against bias or caprice in sentencing (
Tuifaepa v. California, 512 U.S. 967, 114 S.Ct.
2630, 129 L,Ed.2d 750). As part of the sentencing
formula, the jury is instructed that their decision
must be unanimous (CPL § 400.27[10] ). The jury
can then only impose a sentence of death if it unan-
imously finds beyond a reasonable doubt that ag-
gravating factors substantially outweigh mitigating
factors established by the defendant by a fair pre-
ponderance of the evidence (CPL § 400.27[ll] ).
Thus, the Legislature has insured that once a de-
fendant falls within a class of persons eligible for
the death penalty, its procedure for arriving at such
a decision is not meted out in an arbitrary or capri-

cious manner ( California v. Ramos , 463 U.S. 992,
103 S.Ct. 3446, 77 L.Ed.2d 1171).

Accordingly, the defendant's motion on this is-
sue is denied.

[Portions of opinion omitted for purposes of
publication.]

N.Y.Co.Ct.,1997.

People v. Mateo

175 Misc.2d 192, 664 N.Y.S.2d 981, 1997 N.Y.
Slip Op. 97553

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Qrig. US Gov. Works.

1179

Westlaw Delivery Summary Report for WOLFORD,KELLY

Your Search:
Date/Time of Request:
Client Identifier:
Database:

Citation Text:

Lines:

Documents:

Images:

ANGEL /4 MATEO

Thursday, June 2, 201 1 15:14 Eastern

WOLFORD

NY-CS

173 Misc.2d 70
70
1
0

The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters
West and their affiliates.

1180

Westl'aw.

Page l

173 Misc.2d 70, 660 N.Y.S.2d 672, 1997 N.Y, Slip Op. 97347
(Cite as: 173 Mise.ld 70, 660 N.Y.S,2d 672)

5 >

County Court, Monroe County, New York.

The PEOPLE of the State of New York, Plaintiff,
v.

Angel MATEO, Defendant.

June 12, 1997.

Capital defendant sought order with respect to
requests for judicial subpoenas duces tecum. The
County Court of Monroe, Connell, J., held that de-
fendant was entitled to order allowing requests for
judicial subpoenas duces tecum, seeking material to
be used in preparation for mitigation phase, to be ex
parte and under seal.

Order granted,

West Ilcadnotes

Witnesses 410 <£=>16

410 Witnesses
4101 In General

410kl6 k. Subpoena duces tecum. Most
Cited Cases

Capital defendant was entitled to order allow-
ing requests for judicial subpoenas duces tecum,
seeking material to be used in preparation for mitig-
ation phase, to be ex parte and under seal; while ap-
plicable rale required that such applications be on
notice, objections to ex parte applications were in-
frequent, practice in other jurisdictions was to hon-
or such applications, and requiring applications to
be on notice would provide district attorney with
unfair advance knowledge of defense strategy at
sentencing phase, McKinney’s CPLR 2307; McKin-
ney’s Judiciary Law § 35-b, subd. 8.

**672 *70 Edward J. Nowak, Public Defender of
Monroe County (William Easton, of counsel), for
Defendant.

Howard R. Relin, District Attorney of Monroe

County (Michael Green, of counsel), for Plaintiff.

JOHN J. CONNELL, Judge.

The defense seeks an Order from this Court al-
lowing requests for judicial subpoenas duces tecum
to be ex parte and under seal for materials and doc-
uments held by various agencies to be used in as-
sisting their preparation of the mitigation phase *71
of the above entitled capital case. The People have
opposed that application, arguing that that proced-
ure would contravene CPL § 610.20(3) and CPLR §
2307.

In support of their application, the defense
claims that they have unsuccessfully attempted to
obtain various records relating to the defendant
even when supplying various agencies with releases
signed by the defendant authorizing the release of
his records. Several agencies have apparently re-
fused to provide such records without judicial au-
thorization. The defense is seeking the records, not
to be used during the guilt phase, but rather in pre-
paration for the sentencing phase of the trial, which,
if held, would proceed immediately after the guilt
phase.

Although CPLR § 2307 requires that such ap-
plications be on notice to the adverse party, that
provision is honored more in the breech than in the
observance in this county. Perhaps that is because
there are infrequent objections to these cx parte ap-
plications. Nonetheless, it is clear that the practice
in criminal courts in Monroe County has been to
honor such applications and allow opposing views
to be heard only when specific **673 objections to
the individual subpoenas are made or when the is-
suing judge feels it appropriate to notice opposing
counsel based on the specific item sought {People
v. John Doe, 170 Misc.2d 454, 649 N.Y.S.2d 326).

In a capital case, the defendant bears the bur-
den at the sentencing phase to prove any factor in
mitigation by a preponderance of the evidence (

© 201 1 Thomson Reuters. No Claim to Orig. US Gov, Works.

1181

Page 2

173 Misc.2d 70, 660 N,Y.S.2d 672, 1997 N.Y. Slip Op, 97347
(Cite as: 173 Misc.2d 70, 660 N,Y,S.2d 672)

CPL § 400.27[6J ). Except in two limited circum-
stances, the District Attorney may not present any
more than a rebuttal case to the defendants evid-
ence presented. Were the District Attorney noticed
as to every type of subpoenaed record sought by the
defense, they would also be alerted about the very
heart of the defendant's strategy at the sentencing
phase.

There is sufficient statutory and case law to
justify the defendant's request for ex parte applica-
tions in this regard (Judiciary Law § 35-b(8); Jke v.
Oklahoma , 470 U.S. 68, at 86-87, 105 S.Ct. 1087,
at 1097-98, 84 L.Ed.2 d 53). Accordingly, this Court
will grant the motion of the defendant to authorize
ex parte and under seal applications for subpoenaed
documents to be used at the sentencing phase only.
Such applications will be reviewed by this Court in
camera and upon such review, a decision will be
rendered, on an individual basis, as to whether no-
tice should be given to the District Attorney.

N.Y.Co.Ct.,1997.

People v. Mateo

173 Misc.2d 70, 660 N.Y.S.2d 672, 1997 N.Y. Slip
Op. 97347

END OF DOCUMENT

©2011 Thomson Reuters. No Claim to Grig. US Gov. Works.

1182

Westiaw.

Page 1

249 A,D,2d 894, 672N.Y.S.2d 594, 1998 N.Y. Slip Op. 04048
(Cite a »: 249 A.D.2d 894, 672 N.Y.S.2d 594)

H

Supreme Court, Appellate Division, Fourth Depart-
ment, New York.

PEOPLE of the State of New York, Appellant,
v.

Angel MATEO, Respondent.

April 29, 1998.

In murder prosecution, defense sought dis-
missal of counts of indictment for lack of legally
sufficient evidence before grand jury. The Monroe
County Court, Connell, J., granted motion, and
state appealed. The Supreme Court, Appellate Divi-
sion, held that additional murders alleged to have
been committed by defendant were not committed
“in a similar fashion” as required to form basis for
first-degree murder indictment.

Affirmed.

West Headnotes

Homicide 203 €=^540

203 Homicide
203II Murder

203k539 First Degree, Capital, or Aggrav-
ated Murder

203k540k. In General Most Cited Cases
(Formerly 203k22(l))

Murders alleged to have been committed by de-
fendant within 24 months prior to murder with
which he was charged were not committed “in a
similar fashion” as required to form basis fox first
degree murder indictment, where additional
murders did not adequately resemble each other
with respect to motive, method and surrounding cir-
cumstances. McKinney's Penal Law § 125.27, subd,
l(aX*»).

**594 Howard R. Refill by Wendy Lehmann,
Rochester, for Appellant.

William E. Easton, Rochester, for Respondent.

*895 Before LAWTON, J.P., and HAYES,
BOEHM and FALLON, JJ,

MEMORANDUM:

We conclude that County Court properly dis-
missed counts 11 and 12 of the indictment charging
defendant with murder in the first degree (Penal
Law § 125.27[l][a][xi] That section provides in
part that a defendant may be charged with murder
in the first degree when, u [w]kh intent to cause the
death of another person, he causes the death of such
person or of a third person; and * * * the defendant
intentionally caused the death of two or more addi-
tional persons within the state in separate criminal
transactions within a period of twenty-four months
when committed in a similar fashion or pursuant to
a common scheme or plan”. In dismissing those
counts, the court concluded that the People's evid-
ence before the Grand Jury was insufficient to es-
tablish that the murders were committed “in a sim-
ilar fashion”. In reaching that conclusion, the court
interpreted “in a similar fashion” to mean serial
killings, i.e., unique, ritualistic or signature-like
slayings. The People contend that the court should
have given the phrase “in a similar fashion” its
plain meaning and thus should have concluded that
the evidence was legally sufficient.

Even affording the phrase "in a similar fash-
ion” its plain meaning, we conclude that the evid-
ence before the Grand Jury was legally insufficient.
The record establishes that defendant's motive and
method in each of the four murders were different
and that the circumstances surrounding each of the
murders were different. Because the murders did
not adequately resemble each other with respect to
motive, method and surrounding circumstances,
they were not committed “in a similar fashion” In
view of our determination, it is unnecessary to re-
view the propriety of the court's .conclusion that

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1183

Page 2

249 A.D.2d 894, 672 N.Y.S.2d 594, 1998 N.Y. Slip Op, 04048
(Cite as: 249 A.D.2d 894, 672 N.Y.S.2d 594)

Penal Law 5 I25.27(l)(a)(x0 applies only to serial

killings. In addition, because defendant does not ar-
gue before us that the phrase “in a similar fashion”
is unconstitutionally vague, we do not address that
issue.

Order unanimously affirmed.

N.Y.A.D. 4 Dept., 1998.

People v. Mateo

249 A.D.2d 894, 672 N.Y,S.2d 594, 1998 N.Y. Slip
Op. 04048

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Orig. US Oov, Works.

1184

Westlaw.

Page i

251 A.D.2d 1041, 674 N.Y.S,2d 192, 1998 N.Y. Slip Op, 05487
(Cite as: 251 A,D,2d 1041, 674 N.Y.S.2J 192)

r

Supreme Court, Appellate Division, Fourth Depart-
ment, New York.

Matter of Honorable Howard R. RELIN, as Monroe
County District Attorney, Petitioner,
v.

Honorable John J. CONNELL, as Monroe County
Court Judge, Angel Mateo, Respondents,
and

Honorable Dennis C. Vacco, Attorney General of
New York State, Intervenor.

June 10, 1998.

Prosecutor commenced Article 78 proceeding
seeking to prohibit the Supreme Court, Monroe
County, John J. Connell, J., from enforcing an order
declaring provisions of the death penalty law un-
constitutional. The Supreme Court, Appellate Divi-
sion, held that the provisions governing guilty picas
do not grant a defendant the unilateral right to plead
guilty and thereby avoid death penalty and, thus,
they do not needlessly encourage guilty pleas in vi-
olation of the defendant’s right to demand a jury tri-
al.

Petition granted in part.

West Headnotes

Criminal Law 110 0=^273.1(1)

110 Criminal Law
UOXV Pleas

1 10k272 Plea of Guilty

1 10k273.l Voluntary Character

1 10k273.1(l) k. In General. Most

Cited Cases

Jury 230 C^>31.1
230 Jury

230II Right to Trial by Jury

23Dk30 Denial or Infringement of Right

230k31.1 k. Statutory Provisions, Most

Cited Cases

Death penalty law provisions governing guilty
* picas do not grant defendant the unilateral right to
plead guilty and thereby avoid death penalty and,
thus, they do not needlessly encourage guilty pleas
in violation of defendant’s right to demand jury tri-
al. McKinney’s CPL §§ 220.10, subd. 5(e), 220.30,
subd. 3(b)(vii), 220.60, subd. 2(a).

**192 Monroe County District Attorney (Wendy
Lehmann, of counsel), Rochester, for petitioner.

John J. Connell by Donald Thompson, Rochester,
for respondent Connell.

Capital Defender's Office by Joseph Flood,
Rochester, for respondent Mateo.

New York Civil Liberties Union by Christopher
Dunn, New York City, for amicus curiae.

Richard A. Drown, District Attorney of Queens
County, Kew Gardens, for New York State District
Attorneys* Association, amicus curiae.

*1042 Before LAWTON, J.P., and HAYES, PIG-
OTT, BOEHM and FALLON, JJ.

*3041 MEMORANDUM:

The People commenced this original CPLR art-
icle 78 proceeding seeking, infer alia, to prohibit
respondent the Honorable John J. Connell from en-
forcing an order declaring CPL 220,1 0(5)(e),
220. 30(3 )(b)(vti) and 220.60(2)(a) unconstitutional.
We deny that part of the petition seeking a writ of
prohibition {see generally. Matter of Gold v.
Gartenstein, 54 N.Y.2d 627, 442 N.Y.S.2d 504,
425 N.E.2d 892; Matter of Van Wie v. Kirk, 244
A.D.2d 13, 675 N.Y.S.2d 469 [decided herewith] ).
Because this issue is of critical importance and is
likely to recur, we grant that part of the petition
seeking, in the alternative, to convert the proceed-

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1185

Page 2

251 A.D.2d 1041, 674 N.Y.S.ld 192, 1998 N.Y. Slip Op, 05487
(Cite as: 251 A.».2tl 1041, 674 N.Y.S.2d 192)

ing to a declaratory judgment action (see, CPU!
103[c}; **193A (otter of Morgenthait v. Roberts . 65
N.Y.2d 749, 751, 492 N.Y.S.2d 21, 481 N.E.2d
561; Matter of Morgenthau v. Erlhaum, 59 NY,2d
143, 151-152, 464 N.Y.S.2d 392, 451 N.E.2d 150,
cert, denied 464 U.S. 993, 104 S.Ct, 486, 78
L.Ed.2d 682), and we grant judgment declaring
those sections constitutional,

The People contend that the provisions of New
York's death penalty statute governing kinds of
pleas (CPL 220,10[5][e] ), those governing pleas to
part of an indictment or covering other indictments
(CPL 220.30[3](b][vii] ) and those governing the
change of a plea (CPL 220.60[2](a] ) do not violate
respondent Angel Mateo's right to a jury trial and
therefore are constitutional. We agree. Those sec-
tions do not grant a defendant the unilateral right to
plead guilty and thereby avoid the death penalty,
and thus they do not “needlessly encourage) ]”
guilty pleas in violation of defendant's right to de-
mand a jury trial ( United Stales v. Jackson, 390
U.S. 570, 583, 88 S.Ct. 1209, 20 L.Ed.2d 138; see,
Matter of Hynes v. Tomei, 237 A.D.2d 52, 666
N.Y.S.2d 687; see also. Corbin v. New Jersey, 439
U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466; North Car-
olina v. Alford. 400 U.S. 25, 91 S.Ct, 160, 27
L.Ed.2.d 162, Brady v. United States, 397 U.S. 742,
90 S.Ct. 1463, 25 L.Ed.2d 747). Contrary to
Mateo's contention, those provisions do not violate
the N.Y. Constitution (see generally. People v.
Seaberg, 74 N.Y.2d I, 7, 543 N.Y.S.2d 968, 541
N.E.2d 1022). Indeed, they provide a defendant
charged with a capital crime with an opportunity to
plead guilty.

We have reviewed respondents' remaining con-
tentions and conclude that they are without merit.

Consequently, we grant the petition in part,
convert the proceeding to an action for a declarat-
ory judgment and grant judgment in favor of peti-
tioner declaring that CPL 220. 10(5)(e), 220.30
(3)(b)(vii) and 220.60(2)(a) are constitutional.

Petition unanimously granted in part without

costs and judgment granted,

N.Y.A.D. 4 Dept,, 1998.

Relin v. Connell

251 A,D.2d 1041, 674 N.Y.S.2d 192, 1998 N.Y.
Slip Op. 05487

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Ortg. US Oov. Works,

1186

West [aw.

Page 1

177 Misc.2d 814, 676 N.Y.S.2d 903, 1998 N.Y. Slip Op. 98455
(Cite as: 177 Misc.2d 814, 676 N.Y.S.2d 903)

P*

County Court, Monroe County, New York.

The PEOPLE of the State of New York, Plaintiff,
v.

Angel MATEO, Defendant.

July 27, 1998.

The prosecution moved to have a defendant,
charged with murder, file a notice prior to the com-
mencement of trial if the defense intended to offer
psychiatric evidence in the penalty phase. The
County Court, Monroe County, Connell, J., held
that the statute did not require pretrial notice of in-
tent, as the defense did not seek to introduce psy-
chiatric evidence in the guilt phase.

Motion denied.

West Headnotes

Criminal Law 110 £=^629(9.5)

1 10 Criminal Law
110XX Trial

1 10XX(A) Preliminary Proceedings

1 10k629 List of Witnesses and Disclosure
of Other Matters

1 10k629(9.5) k. Defense of Insanity or
Incapacity. Most Cited Cases

A statute requiring a party intending to intro-
duce psychiatric evidence to file a notice of that in-
tent “within a reasonable time prior to trial,” did
not require a defendant charged with murder and
not planning to introduce psychiatric evidence at
the guilt phase of his trial to file the notice before
the trial began; the prosecution would then exercise
its right to have the defendant examined by its inde-
pendent psychiatrist, and would gain an unfair ad-
vantage, and the statute did not prohibit the grant-
ing Of a continuance if the defendant were found
guilty and indicated an intent to introduce psychiat-
ric evidence at the punishment phase of the trial.
McKinney’s CPL § 400.27, subd. 13(b).

**904 *814 Kevin M. Doyle, Capital Defender
(William T. Easton and Joseph T. Flood, of coun-
sel), for defendant.

Howard R. Relin, District Attorney of Monroe
County (Michael Green and Wendy Evans
Lehmann, of counsel), for plaintiff.

JOHN J. CONNELL, Judge.

The District Attorney has made an application
pursuant to Criminal Procedure Law 400.27(1 3)(b)
directing the defendant to file a notice by July 27,
1998 if the defense intends to offer psychiatric
evidence *815 at the penally phase of the trial of
this Indictment scheduled to begin on September 1,
1998. The defendant opposes the application of the
People, asking this Court, among other things, to
delay any application to file such a notice until the
completion of the guilt phase of the trial.

CPL 400.27(1 3)(b) requires either party intend-
ing to offer psychiatric evidence to file a notice of
that intent “within a reasonable lime prior to trial.”
The notice also requires a “brief but detailed state-
ment specifying the witness, nature and type of psy-
chiatric evidence sought to be introduced.” (CPL
400.27{l31(bj ). The statute also allows the District
Attorney to make an application to have the defend-
ant submit to a psychiatric exam for rebuttal pur-
poses, should the defendant file such a notice.

In this case, the defendant has affirmatively
stated that there will be no psychiatric evidence
submitted by him during the guilt phase of the trial.

The defendant is charged with Murder in the
First Degree under § 125.27(1 )(a)(vii) and (b) of
the Penal Law, the so-called “commander” section.
His wife, Monica Szlekovics, was previously
charged and tried for the same charge involving the
same incident. She had Filed a psychiatric notice
under CPL 250.10 since the District Attorney was
not seeking the death penalty against her. That no-
tice resulted in the Court granting the People's ap-

© 2011 Thomson Reuters. No Claim to Orig, US Gov. Works.

1187

Page 2

177 Misc.2d 814, 676 N.Y.S.2d 903, 1998 N.Y. Slip Op. 98455
(Cite as; 177 Misc.2d 814, 67 6 N.Y.S,2d 903)

plication to have her examined by their independent END OF DOCUMENT

psychiatrist. The results of those examinations of

Monica Szlekovics, as well as her own psychiatric

examinations, have been provided to the defendant

Mateo in this case by previous order of this Court.

If this Court were to require the defendant to
file a notice as requested by the People at this stage
of the proceedings, the People would certainly re-
quest the opportunity to have the defendant ex*
amined by their psychiatrist, Of necessity, the ex-
aminations that would follow such an order would
touch on the interaction between the defendant and
Monica Szlekovics, the hierarchy between the two
during the timing of this alleged “command”
killing, and the areas of inquiry the People intend to
pursue under People v. Ventimiglia, 52 N.Y.2d 350,

438 N.Y.S.2d 261, 420 N.E.2d 59, as outlined by
them in previously filed papers before this Court.

There is nothing in the statute that would pre-
vent an adjournment between the guilt phase and, if
needed, the penalty phase of this trial. To require
the defendant to file this notice before the guilt
phase under the facts in this case would be unfairly
prejudicial to the defense.

*816 Accordingly, this Court will defer the de-
fense obligation to file a notice under CPL
400.27(1 3) until the completion of the guilt **905
phase of the capita! trial. Should that Notice be
filed at that time, this Court will give adequate op-
portunity to the People to have the defendant ex-
amined by a psychiatrist of their choosing and to
prepare for the sentencing phase. This Court also
puts both sides on notice at this point that in anti-
cipation of such a notice, preliminary preparations
should be made by both sides to deal with the even-
tuality of hiring psychiatric witnesses on these is-
sues.

N.Y.Co.Ct,1998.

People v. Mateo

177 Misc.2d 814, 676 N.Y.S.2d 903, 1998 N.Y.
Slip Op. 98455

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1188

Page 1

. 98456

West Law.

177 Misc-2d 817, 676 N.Y.S.2d 908, 1998 N.Y. Slip Op.
(Cite as: 177 Misc^td 817, 676 N.Y.S.2d 908)

County Court* Monroe County, New York.

The PEOPLE of the State of New York, Plaintiff,
v.

Angel MATEO, Defendant.

July 29, 1998.

Defendant charged with murder filed applica-
tion for order precluding People from arguing or
suggesting that defendant caused victim's death by
shooting him with gun. The County Court, Monroe
County, Connell, J,, held that People could argue
that defendant shot victim, even though People ar-
gued in prior murder trial of defendant’s wife that
wife fired fatal shot.

Application denied.

West Headnotes

Criminal Law 110^1983

1 10 Criminal Law
ilOXXXI Counsel

I tOXXXl(D) Duties and Obligations of Pro-
secuting Attorneys

ilOXXXl(D)l In General

I10kl983 k. Assertion of Theory In-
consistent with Theory Previously Asserted. Most
Cited Cases

(Formerly 110k700(l))

People would be permitted to argue that de-
fendant caused murder victim's death by shooting
him with gun, even though People had argued in
prior murder trial of defendant's wife that wife fired
fatal shot; People's argument was reasonable view
of evidence and testimony which, according to
People, did not establish with certainty who acta-
ally killed victim.

**909 *817 Howard R. Relin, District Attorney of
Monroe County, (Michael Green and Wendy Evans
Lehmann, of counsel), for plaintiff.

Kevin M. Doyle, Capital Defender, (William T. Ea-
ston and Joseph T. Flood, of counsel), for defend-
ant.

JOHN J. CONNELL, Judge.

This is an application by the defendant for an
Order precluding the prosecution from arguing or in
any other manner asserting or suggesting that the
defendant caused the death of Juan Rodriquez-Ma-
tos by shooting him with a gun. The basis of their
application is grounded in what took place in the
trial of Monica Szlekovics, the defendant's wife. At
that murder trial, the People argued to the jury that
the defendant Szlekovics *818 actually fired the
fatal shot that killed Mr. Rodriquez-Matos. The
Szlekovics statements introduced by the District
Attorney at that trial contradicted each other as to
whether she or Mr. Mateo actually killed the vic-
tim.

The People oppose the defendant's application,
pointing out that from the very earliest stages of
both the Szlekovics and Mateo cases, they have
taken the position that they are not able to say with
certainty which defendant pulled the trigger and
which, if any, commanded the other to pull the trig-
ger. They maintain that the argument they made to
the jury was in good faith based on a reasonable
view of the evidence that was presented to that jury.

The People do not intend to call Ms.
Szlekovics at defendant Mateo's trial. The fact that
they will nol be calling her takes them out of the
situation criticized in Thompson v. Calderon, 120
F.3d 1045, 9th Cir. en banc, cert, granted, 521 U S.
1136, 1 18 S.Ct. 14, 138 L.Ed.2d 1037.

In the Mateo case, the People also intend to of-
fer evidence of the defendant's conflicting versions
of what occurred. Witnesses will testify that he ad-
mitted actually shooting the victim At some points
and at others indicated that he commanded Ms.
Szlekovics to shoot the victim. To still others, he

<P 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1189

Page 2

177 Misc,2d 817, 676 N.Y.S,2d 908, 1998 N.Y. Slip Op. 98456
(Cite as: 177 MUcJd 817, 676 N,Y.S.2d 908)

expressed surprise that Ms, Szlekovics did shoot
the victim.

It appears then that in this case, the People are
merely intending to argue reasonable views of the
evidence that could be drawn from the testimony
and physical evidence that the jury will be review-
ing.

Accordingly, the defendant's application is in
all respects denied.

N.Y.Co.Ct.,1998.

People v. Mateo

177 Mise.2d 817, 676 N.Y.S.2d 908, 1998 N.Y.
Slip Op. 98456

END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1190

Westiaw,

706 N.E.2d 1201 Page 1

92 N.Y,2d 613, 706 N,E.2d 1201, 684 N.Y.S.2d 177, 1998 N.Y, Slip Op. 11377
(Cite as: 92 N,Y.2d 613, 706 N.E.2d 1201, 684 N.Y.S.2d 177)

¥•

Court of Appeals of New York.

In the Matter of Charles J. HYNES, as District At-
torney of Kings County, Respondent,
v.

Albert TOMEI, as Justice of the Supreme Court, ct
a!,. Appellants.

In the Matter of Howard R, Relin, as Monroe
County District Attorney, Respondent,
v,

John J. Connell, as Monroe County Court Judge, et
al.. Appellants,
and

Dennis C, Vacco, Attorney-General of the State of
New York, Intervenor-Respondent.

Dec. 22, 1998,

In case one, defendant charged with, inter alia,
murder in first-degree moved for order declaring
unconstitutional the plea provisions of death pen-
alty statute under which a defendant may be sen-
tenced to death only after a jury trial, and a death
sentence is barred upon entry of a guilty plea. The
Supreme Court, Kings County, Tomei, J,, granted
motion. The People sought writ of prohibition The
Supreme Court, Appellate Division, 237 AX>.2d 52,
666 N.Y.S,2d 687, declared the statutory provisions
constitutional. Defendant appealed. In case two,
prosecutor commenced Article 78 proceeding seek-
ing to prohibit the Supreme Court, Monroe County,
John J. Connell, J., from enforcing an order declar-
ing plea provisions of death penalty law unconstitu-
tional. The Supreme Court, Appellate Division, 251
A.D.2d 1041, 674 N.Y.S,2d 192, declared provi-
sions constitutional. Defendant appealed. The Court
of Appeals, Kaye, C.J., held that: (1) plea provi-
sions of death penalty statute impermissibly burden ,
a defendant’s Fifth Amendment right against self-
incrimination, and Sixth Amendment right to a jury
trial, and (2) unconstitutional plea provisions were
severable from remained of death penalty statute.

Reversed.

West Headnotes

111 Sentencing and Punishment 350H €=>1628

35 OH Sentencing and Punishment
350HV1II The Death Penalty
350HVIII(A) In General

350Hkl622 Validity of Statute or Regu-
latory Provision

350Ilkl628 k. Other Particular Provi-
sions. Most Cited Cases
(F ormerly 1 1 Okl 206. 1 (2))

Provisions of the death penalty statute, under
which a defendant may be sentenced to death only
after a jury trial and a death sentence is barred upon
entry of a guilty plea with consent of court and
People, impermissibly burden a defendant’s Fifth
Amendment right against self-incrimination, and
Sixth Amendment right to a jury trial. U.S.C.A.
Const. Amends. 5, 6; McKinney’s CPL §§ 220.10,
subd. 5(e), 220.30, aubd, 3(b)(v»).

121 Criminal Law 110 €=>273.1(2)

110 Criminal Law
U0XV Pleas

H0k272 Plea of Guilty

l I0k273. 1 Voluntary Character

110k273.!(2) k. Representations,
Promises, or Coercion; Plea Bargaining. Most Cited
Cases

Pica bargaining serves important functions for
both prosecutors and defendants, such as individu-
alized justice, leniency and economy.

131 Criminal Law 110 €=>273.1(2)

110 Criminal Law
U0XV Pleas

I I0k272 Plea of Guilty

1 10k273.t Voluntary Character

110k273,l(2) k. Representations,
Promises, or Coercion; Pica Bargaining. Most Cited

©201 1 Thomson Reuters. No Claim to Orig, US Gov. Works.

1191

706 N.E.2d 1201 Page 2

92 N,Y.2d 613, 706 N.E.2d 1201, 684 N,Y;S.2d 177, 1998 N.Y. Slip Op. 11377
(Cite as: 92 N.Y, 2d 613, 706 N.E*2d 1201, 684 N.Y.S.2d 177)

Cases

State may encourage guilty pleas by offering
benefits to defendants' in return for a guilty plea.

[4] Criminal Law 110 €=>273.1(2)

1 10 Criminal Law
1 1 OX V Picas

1 1 Qk272 Plea of Guilty

IJ0k273.1 Voluntary Character

110k273.1(2) k. Representations,
Promises, or Coercion; Plea Bargaining. Most Cited
Cases

Plea bargaining becomes no less lawful or de-
sirable when it is codified in statutory form.

[51 Statutes 361 €=*64(1)

361 Statutes

3611 Enactment, Requisites, and Validity in
General

361 k64 Effect of Partial Invalidity

36lk64(l) k. In General. Most Cited

Cases

If removing unconstitutional provisions of stat-
ute while leaving the remainder intact would result
in a law the Legislature would not have intended,
the entire statute must be stricken and unconstitu-
tional provisions are not severable.

[6j Statutes 361 €=64(6)

361 Statutes

3611 Enactment, Requisites, and Validity in
General

361k64 Effect of Partial Invalidity

361k64(6) k. Public Offenses, Prosecu-
tions, and Punishments. Most Cited Cases

Unconstitutional provisions of death penalty
statute, under which a defendant may be sentenced
to death only after a jury trial and a death sentence
is barred upon entry of a guilty plea, were severable
from remainder of death penalty statute, which
would remain valid; plea provisions were discrete
and their removal would not affect classification of
capita] offenses or conduct of trial or penalty phase.

McKinney's CPL §§ 220.10, subd. 5(e), 220.30,
subd. 3{b)(vii); Laws 1995, c. 1, § 37.

[7] Criminal Law 110 €=273(2)

11 0 Criminal Law
ilOXV Pleas

110k272 Plea of Guilty
1 1 0k273 In General

1 1 0k273(2) k. Right to Plead Guilty;
Mental Competence. Most Cited Cases

Defendant may not plead guilty to first degree
murder while a notice of intent to seek the death
penalty is pending. McKinney's CPL § 220.60,
subd. 2(a).

[8) Statutes 361 €=64(6)

361 Statutes

3611 Enactment, Requisites, and Validity in
General

361k64 Effect of Partial Invalidity

361k64(6) k. Public Offenses, Prosecu-
tions, and Punishments. Most Cited Cases

Declaration of unconstitutionally of death pen-
alty statute's plea provisions, under which defend-
ant charged with first degree murder could avoid
death sentence by pleading guilty, did not require
that provision allowing defendants who have
pleaded not guilty to any indictment to withdraw
plea before verdict be declared unconstitutional,
where provision allowing withdrawal of plea was
not limited to first degree murder cases. U.S.C.A.
Const.Amends. 5, 6; McKinney's CPL §§ 220.10,
subd. 5(e), 220.30, subd. 3(b)(vii), 220.60, subd.
2(a).

***178 *615 **1202 Fiamhaft, Levy, Kamins &
Hirseh, Brooklyn (Barry Kamins of counsel), for
Albert Tomei, appellant in the first above-entitled
action.

*616 Kevin M. Doyle, Capital Defender, New York
City (Susan H. Salomon of counsel), for Michael
Shane Hale, appellant in the first above- entitled ac-
tion.

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. WoTks.

1192

706 N.E.2d 1201 Page 3

92 N,Y,2d 613, 706 N.E.2d 1201, 684N.Y.S.2d 177, 1998 N Y. Slip Op. 1 1377
(Cite as: 92 N,Y,2d 613, 706 N.E.2d 1201, 684 N,Y.S.2d 177)

Charles J, Hynes, District Attorney of Kings
County, Brooklyn (Jonathan Frank and Keith Dolan
of counsel), for respondent in the first above-en-
titled action.

Dennis C. Vacco, Attorney-General, New York
City (Jill Gross *617 Marks, Edward D. Saslaw and
Michael Buskus of counsel), for intervenor-re-
spondent in the first above-entitled action.

Christopher Dunn, New York City, Norman Siegel
and Arthur N. Eisenberg for New York Civil Liber-
ties Union Foundation, amicus curiae in the first
above-entitled action.

Donald M. Thompson, Rochester, for John J. Con-
nell, appellant in the second above-entitled action.

***179 *618 **1203 Office of Capital Defender,
Rochester (Joseph T. Flood and William T. Easton
of counsel), for Angel Mateo, appellant in the
second above-entitled action.

Howard R. Relin, District Attorney of Monroe
County, Rochester* 619 (Wendy Evans Lehmann of
counsel), for respondent in the second above-en-
titled action.

Dennis C. Vacco, Attorney-General, New York
City (Jill Gross Maries, Edward D. Saslaw and Mi-
chael Buskus of counsel), for intervenor-respondent
in the second above-entitled action.

William J, Fitzpatrick, District Attorney of Onond-
aga County, Syracuse, Richard A. Brown, District
Attorney of Queens County, Kew Gardens (Gary
Fidel and Linda Canton i of counsel), and Bruce
Scciigcr for New York State District Attorneys As-
sociation, amicus curiae in the first and second
above-entitled actions.

*620 OPINION OF THE COURT

KAYE, Chief Judge.

Thirty years ago* the United States Supreme
Court struck down the death penalty provision of
the Federal Kidnaping Act (18 U.S.C. § 1201 [a] ),

which allowed a defendant to be sentenced to death
only after a jury trial. The Supreme Court invalid-
ated the provision because, by needlessly encour-
aging guilty pleas and juiy waivers to avoid death
sentences, it impermissibly burdened defendants'
Fifth Amendment right against self- incrimination
and Sixth Amendment right to a jury trial ( United
Stales v. Jdckson. 390 US. 570, 88 S.Ct 1209, 20
LEd.2d 138), Despite the passage of three decades,
a plethora of decisions involving the death penalty
and a sea change in plea bargaining, the Supreme
Court has never overruled Jackson, which binds
this Court. Indeed, every other death penalty State
has fit its capital murder plea-bargaining proced-
ures within the rationale of Jackson,

Three years ago, the New York State Legis-
lature enacted a capital punishment statute that-like
the Federal Kidnaping Act-allows a defendant to be
sentenced to death only after a jury trial (L.1995,
eh, 1). Bench trials are not permitted in capital
cases (see, N.Y. Const., art. I, § 2), and the statute
bars imposition of a death sentence upon a guilty
plea (see, CPL 22O.l0[5][e]; 220.30[3][b][vii];
220.60[2][a) ). The New York law thus explicitly
provides two levels of penalty for the same offense,
imposing death only^^those who assert innocence
and proceed to trial. Defendants before us now
challenge the plea provisions of the New York stat-
ute as violative of their Fifth and Sixth Amendment
rights, relying on Jackson.

FN 1 . Significantly, of the 39 death penalty
jurisdictions in the United States, only the
New York statute provides for such a dif-
ference in maximum punishments.

11-3] Both trial courts held the plea provisions
facially unconstitutional under Jackson {People v.
Hale, 173 Misc.2d 140, 661 N.Y.S.2d 457; People
v. Mateo, 175 Misc.2d 192, 664 N.Y.S.2d 981). Jn
separate declaratory judgment actions, the Appel-
late Division of the Second and Fourth Departments
subsequently declared the provisions constitutional
( Matter of Hynes v. Tomei, 237 A.D.2d 52, 666
N.Y.S.2d 687; Matter of Relin v. Connell, 251

© 20 U Thomson Reuters. No Claim to Orig. US Gov. Works.

1193

706 N.E.2d 1201 page 4

92 N.Y.2d 613, 706 N.E.2d 1201, 684 N.Y.S.2d 177, 1998 N.Y. Slip Op. 1 1377
(Cite as: 92 N.Y.2d 613, 706 N.E.2d 1201, 684 N.Y.S^d 377)

A,D.2d 1041, 674 N.Y.S.2U 192). We arc con-
vinced that Jackson compels the contrary result,
and therefore reverse the Appellate Division orders
and declare CPL 220.10{5)(e) and 220.30(3)(b)(vii)
unconstitutional, CPL 220,60{2Xa), in the absence
of the other two challenged provisions, is constitu-
tional. Because the unconstitutional provisiom*621
are severable, the remainder of the statute is also
unaffected by our ruling.

I.

The Federal Kidnaping Act considered in Jack-
son provided:

“Whoever knowingly transports in interstate ***
commerce, any person who has been unlawfully
**■* kidnaped *** and held for ransom •** or
otherwise *** shall be punished (1) hy death if
the kidnaped person hus not been liberated un-
harmed, and if the verdict of the jury shall so re-
commend, or (2) by imprisonment for any term of
years or for life, if the death penalty is not im-
posed”

***180 **1204 Because the Act authorized the
death penalty only on the recommendation of a
jury, while a defendant convicted of the same of-
fense on a guilty plea or by a Judge escaped the
threat of capital punishment, the Supreme Court
concluded that the Act “needlessly” encouraged
guilty pleas and jury waivers {United States v.
Jackson , supra, at 583, 88 S.Ct. 1209; see also.
Pope v. United States, 392 U.S. 651, 88 S.Ct. 2145,
20 L.Ed.2d 1317 [death sentence imposed under the
Federal Bank Robbery Act (18 U,S.C. § 21 13[eJ )
vacated for the same reason) ). The Court acknow-
ledged that restricting the death penalty to cases in
which a jury recommends it is a legitimate goal,
and that such a restriction would likely decrease the
frequency of capital punishment. However, the
Court concluded these considerations did not save
the Act from constitutional infirmity. While the
Act's chilling effect on a defendant's exercise of tbe
Fifth Amendment right against self-incrimination
and Sixth Amendment right to a jury trial may have
been incidental, the effect was also “unnecessary

and therefore excessive,” since Congress could
have achieved its goals by allowing juries to sen-
tence defendants to the full range of punishments
regardless of how guilt was determined (id., at
582-583, 88 S.Ct. 1209),

Shortly after Jackson, this Court invalidated
two provisions of the former Code of Criminal Pro-
cedure that required waiver of a jury trial in order
to receive the benefit of youthful offender treatment
{see. People v. Michael A C , 27 N.Y.2d 79, 313
N.Y.S.2d 695, 261 N.E.2d 620), Although respond-
ents who refused to waive a jury trial were not sub-
ject to the death penalty, (hey were exposed to
longer prison sentences than those prosecuted as
youthful offenders. Drawing a parallel to Jackson.
this Court held that “a procedure which offers an
individual a reward for waiving a fundamental *622
constitutional right, or imposes a harsher penalty
for asserting it, may not be sustainecP' (id., at 86,
313 N.Y.S.2d 695, 261 N.E.2d 620). ™ 2

FN2. Respondents' reliance on People v.
Sher (24 N.Y.2d 454, 301 N.Y.S.2d 46,
248 N,E.2d 887, mot. to amend remittitur
granted 24 N.Y.2d 1031, 302 N.Y.S.2d
853, 250 N,E.2d 253, cert, denied 396 U.S.
837, 90 S.Ct. 96, 24 L.Ed.2d 87), a case
decided before Michael A. C., is mis-
placed. Defendant in Sher was not subject
to the death penalty at the time of his ap-
peal. On June 1, 1965, Governor Rocke-
feller announced that he would grant exec-
utive clemency to all death row inmates,
such as Sher, who would not be subject to
capital punishment under the revised death
penalty statute, and commute their sen-
tences to life imprisonment {see. People v.
Sher. supra. 24 N.Y.2d, at 456, 301
N.Y.S.2d 46, 248 N.E.2d 887, n, citing
press release of June 1, 1965 by Governor
Rockefeller at the time of approval of
L.1965, ch. 1030, § 125.30). Thus, Sher
was subject to the same maximum sen-
tence after a jury trial-life imprisonment-as

© 201 1 Thomson Reuters, No Claim to Orig. US Gov. Works.

1194

706 N,E.2d 1201 Page 5

n N.Y.2d 613, 706 N.E.2d 1201, 684 N.Y.S.2d 177, 1998 N.Y. Slip Op. 1 1377
(Cite as; 92 N.Y.2d 613, 706 N,E«2d 1201, 684 N.Y.S,2d 177)

he would have been had he pleaded guilty.

II,

New York's death penalty statute authorizes a
District Attorney to file a notice of intent to seek
the death penalty against a defendant charged with
murder in the first degree {see, Penal Law § 125.27;
CPL 250.40). Upon conviction by a jury, a capital
defendant faces a separate sentencing proceeding
before a jury to determine whether the penalty im-
posed will be death or fife imprisonment without
parole {see, CPL 400.27), The statute affords a de-
fendant the opportunity to ensure a maximum sen-
tence of life without parole by pleading guilty pur-
suant to the following provisions:

“A defendant may not enter a plea of guilty to the
crime of murder in the first degree as defined in
section 125,27 of the penal law; provided,
however, that a defendant may enter such a plea
with both the permission of the court and the con-
sent of the people when the agreed upon sentence
is either life imprisonment without parole or a
term of imprisonment for the class A-I felony of
murder in the first degree other than a sentence of
life imprisonment without parole” (CPL
220.10[5][e]; 22D.30[3]ib][vii3 ).

**A defendant who has entered a plea of not guilty
to an indictment may, with both the permission of
the court and the consent of the people, withdraw
such pica at any time before the rendition of a
verdict and enter: (a) a plea of guilty to part of
the indictment pursuant to subdivision three or
four ***181 **1205 but subject to the limitation
in subdivision five of section 220.10 ” (CPL
220.60f2][a] ).

*623 For all other crimes in New York only
one top sentence is prescribed by statute.

[1] Thus, like the invalidated Federal Kidnap-
ing Act provision, New York's death penalty statute
explicitly provides for the imposition of the death
penally only upon a jury verdict. As a result, under
the New York statute, only those defendants who

exercise the Fifth Amendment right against self-
incrimination and Sixth Amendment right to a jury
trial put themselves at risk of death. Nevertheless,
respondents argue that the New York statute is dis-
tinguishable from the Federal Kidnaping Act in
several ways. We conclude that the distinctions are
without a constitutionally cognizable difference,

First, under the challenged New York provi-
sions, a defendant can plead guilty to first degree
murder, with agreement on the sentence to be im-
posed, only with the permission of the court and
consent of the People {see, CPL 220.10[5] [e];
220.30[3J[b][vii] ). Because a defendant does not
have unilateral control of the plea process, respond-
ents argue, the statute never gives a defendant the
choice between facing a jury and risking death on
the one hand, and pleading guilty and avoiding
death on the other. Therefore, respondents urge, the
statute cannot “needlessly” encourage guilty pleas.

The Supreme Court, however, has found ap-
proval of a trial court and a prosecutor irrelevant to
the Jackson analysis. Defendants prosecuted under
the Federal Kidnaping Act could not enter a plea of
guilty as of right, since Federal Trial Judges had
discretion to reject guilty pleas and jury trial
waivers. This judicial involvement did not cure the
constitutional problem: the statute's infirmity was
not coercion of guilty pleas and jury waivers but
needless encouragement of them (United States v.
Jackson, supra, at 583, 88 S.Ct. 1209). Even
though not every guilty plea to a charge under the
Act was necessarily involuntary, the statute still im-
permissibly burdened defendants' constitutional
FN3

rights (id.).*

FN3. In the years following Jackson, the
Supreme Court made clear that Jackson
did not establish a new test for determining
the validity of guilty pleas, but rather pro-
hibited the Federal Kidnaping Act's imper-
missible burden on a defendant's exercise
of constitutional rights. The Court also
held that an otherwise valid plea is not ne-
cessarily involuntary if induced by the de-

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1195

706 N.E.2d 1201 Page 6

92 N.Y.2d 613, 706 N.E.2d 1201, 684 N.Y.S.2d 177, 1998 RY. Slip Op. 11377
(Cite as: 92 N.Y.2d 613, 706 N.E,2d 1201, 684 N.Y.S.2d 177)

fondant's fear of the death penalty, and it
refused to vacate guilty pleas simply be-
cause they were agreed to pursuant to stat-
utes subsequently invalidated by Jackson (
see, Brady v. United States, 397 U S. 742,
90 S.Ct. 1463, 25 LBd.2d 747; North Car-
olina v. Alford. 400 U.S. 25, 91 S.Ct. 160,
27 L.Ed.2d 162; Parker v. North Carolina,
397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d
785).

The Supreme Court's subsequent application of
Jackson further demonstrates that the People's in-
volvement in the plea *624 process fails to distin-
guish away Jackson's prevailing rationale. Three
years after Jackson, the Supreme Court declared
unconstitutional North Carolina's capital pleading
scheme, which required the approval of both the
prosecutor and the court for a defendant to plead
guilty. Under the challenged North Carolina statute,
if a defendant charged with capital murder tendered
a signed plea of guilty, the prosecutor, with the
court's approval, could accept or reject the plea. If
the plea were rejected, the trial would “proceed
upon a plea of not guilty and the tender of the plea
of guilty would have no legal significance," expos-
ing the defendant to the death penalty {State v.
Atkinson, 275 N.C. 288, 317, 167 S.E.2d 241, 259,
rev'd 403 U.S. 948, 91 S.Ct. 2283, 29 L.Ed.2d 859).
By contrast, if the plea were accepted, the effect
would be a sentence of life imprisonment. In June
1971, after it had decided Brady, Alford and Park-
er, the Supreme Court reversed five death sentences
imposed under this statute, in a summary disposi-
tion that, without explanation, simply cited Jack-
son:

“Judgments, insofar as they impose the death
sentence, reversed, United States v. Jackson, 390
U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968),
Pope v. United States, 392 U.S. 651, 88 S.Ct. 2145,
20 L.Ed.2d 1317 (1968), and cases remanded for
further proceedings" (Atkinson v. North Carolina ,
403 U.S. 948, 91 S.Ct. 2283, 29 L.Ed.2d 859; Rose-
boro v. North Carolina , 403 U.S. 948, 91 S.Ct.

2289, 29 L.Ed.2d 860; Hill v. North Carolina , , 403
U.S. 948, 91 S.Ct. 2287, 29 L.Ed.2d 860; Williams
v. North Carolina, 403 U.S. 948, 91 S.Ct. 2290, 29
L.Ed.2d 860; ***182 **1206 Sanders v. North Car-
olina, 403 U.S. 948, 91 S.Ct. 2290, 29 L.Ed.2d
860).

Thus, the need to obtain approval from the
People and the court will not save plea provisions
that otherwise violate Jackson (see also, People v.
Michael A.C., 27 N.Y,2d 79, 313 N.Y.S.2d 695,
261 N.E.2d 620, supra [Code of Criminal Procedure
provisions unconstitutional on Jackson grounds,
even though court approval was required, with or

without the recommendation of the Grand Jury or
FN4

District Attorney] ).

FN4. The Nevada Supreme Court, in strik-
ing Nevada's death penalty, also concluded
that the approval of both the State and the
court could not save an otherwise unconsti-
tutional capita] pleading scheme (Spillers
v. State, 84 Nev. 23, 436 P.2d 18, over-
ruled on other grounds Bean v. State, 86
Nev. 80, 465 P.2d 133).

[2][3][4] Second, respondents argue that the
challenged New York provisions are distinguish-
able from the Federal Kidnaping Act because they
merely codify permissible plea bargaining, which
was not at issue in Jackson. Subsequent to Jackson,
both the Supreme Court and this Court have ac-
knowledged the legitimacy and desirobiliiy-indced,
the necessity-of plea bargaining (see, Santobello v.
New York , 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d
427; People v. Selikoff, 35 N.Y.2d 227, 360
N.Y,S.2d 623, 318 N.E,2d 784, cert, denied 419
U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2 d 822). Plea bar-
gaining serves *625 important functions for both
prosecutors and defendants, such as individualized
justice, leniency and economy (State v. Forcella, 52
N.J. 263, 245 A. 2d 181, rev'd in part sub nom. Fu-
niceilo v. New Jersey, 403 U.S. 948, 91 S.Ct. 2278,
29 L.Ed.2d 859). A State clearly may encourage
guilty pleas by offering benefits to defendants' in
return for a guilty plea ( Corbitt v. New Jersey, 439

€> 201 1 Thomson Reuters. No Claim to Qrig. US Gov. Works.

1196

7Q6N.E.2d 1201 Page?

92 N.Y,2d 613, 706 N.E.2d 1201, 684 N.Y.S.2d 177, 1998 N.Y, Slip Op. 1 1377
(Cite as; 92 N,Y,2d 613, 706N.E.2d 1201, 684 N.Y^.2d 177)

U.S, 212, 219, 99 S.CL 492, 58 L.Ed.2d 466). Fur-
thermore, plea bargaining becomes no less lawful
or desirable when it is codified in statutory form (
see, id., at 224, n. H, 99 S.Ct. 492).

While plea bargaining is permissible, the Su-
preme Court in Jackson prohibited statutes that
“needlessly” encourage guilty pleas, which are not
constitutionally protected, by impermissibly bur-
dening constitutional rights. Given the availability
of alternatives that do not impermissibly burden de-
fendants' constitutional rights, the plea provisions
of the statute before us “cannot be justified by [an]
ostensible purpose” such as the facilitation of plea
bargaining (United States v. Jackson, supra , at
582-583, 88 S.Ct. 1209).

Respondents rely heavily on Corbitt, in which
the Supreme Court held that it is constitutionally
permissible to offer a defendant the possibility of
escaping the most severe penalty by pleading guilty
(see, Corbitt v. New Jersey, supra, at 217-219, 99
S.Ct. 492). The New Jersey statute at issue in Cor-
bitt, however, provided for the same maximum sen-
tence-life imprisonment-regardless of a defendant's
plea. White , a lesser sentence was permitted for
those defendants who pleaded guilty, it was not
guaranteed. Thus, the statute survived constitution-
al scrutiny because it did “not reserve the maximum
punishment for murder for those who insist on a
jury trial” (id, at 217, 99 S.Ct. 492). This situation
is readily distinguishable from the challenged New
York provisions, which indeed prescribe a lesser
agreed-upon sentence for those who plead guilty. In
the words of Jackson, “the defendant who abandons
the right to contest his guilt before a jury is assured
that he cannot be executed; the defendant ingenu-
ous enough to seek a jury acquittal stands fore-
warned that, if the jury finds him guilty and does
not wish to spare his life, he will die” (< United
States v. Jackson, supra, at 581, 88 S.Ct. 1209; see,

Corbitt v. New Jersey, supra, at 217, 99 S.Ct. 492).
FN5

FN5. While the Supreme Court has never

overruled Jackson , it has not since Corbitt

(decided in the quite different world of
1978) made reference to Jackson 's
“needless” encouragement of guilty pleas
in any majority opinion. As discussed be-
low, however, the Jackson rationale con-
tinues to have controlling significance in
the Stale courts. Several Stale courts dur-
ing the past two decades have explicitly re-
lied on Jackson in declaring provisions of
their States' death penalty statutes uncon-
stitutional on this ground, most recently
New Hampshire in 1991 (see, State v.
Johnson, 134 N.H. 570, 595 A.2d 498).

Finally, respondents point to the bifurcated
capital trial procedure in New York, by which a
jury that finds a defendant *626 guilty ***183
**1207 determines the sentence in a separate pro-
ceeding (see, CPL 400.27). By contrast, a defendant
prosecuted under the Federal Kidnaping Act faced a
unitary trial. Respondents suggest that under the bi-
furcated scheme, a defendant may have an oppor-
tunity to agree to a sentence after the guilt phase of
the trial, and thus after exercising the rights to
maintain innocence and to have a jury determine
guilt.

This docs not alleviate the Jackson problem,
however, because bifurcation does not eliminate the
statutory framework that allows the possibility of
death only after a jury trial. Capital defendants un-
der the New York statute who are awaiting trial and
are offered a plea are still faced with the choice
Jackson declared unconstitutional: exercise Fifth
and Sixth Amendment rights and risk death, or
abandon those rights and avoid the possibility of
death. Furthermore, as respondents forcefully assert
in trying to distinguish the challenged provisions
from the Federal Kidnaping Act, a prosecutor is not
required to accept a defendant's guilty plea. In fact,
a prosecutor may be less willing to forego pursuit
of the death penalty after a defendant's guilt has
been established beyond a reasonable doubt. Thus,
before deciding whether to proceed to trial, a de-
fendant cannot know whether a deal on the sentence

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1197

706 N.E.2d 1201 Page 8

92 N.Y. 2d 613, 706 N,E.2tl 1201, 684 N.Y.S.2d 177, 1998 N.Y. Slip Op. 1 1377
(Cite as: 92 N.Y.2d 613, 706 N.E.2d 1201, 684 N.Y.S,2d 177)

to be imposed will be available after a guilty ver-
dict and before sentencing, and bifurcation does not
eliminate the “chilling effect” on a defendant’s con-
stitutional rights to maintain innocence and demand
a jury trial {United Stales v. Jackson, supra, at 582,
88 S.Ct, 1209).

Tn sum, respondents' attempts to distinguish
New York's death penalty statute from the death
penalty invalidated by the Supreme Court in Jack-
son fail. We recognize that New York's death pen-
alty statute carries a strong presumption of constitu-
tionality, as do all statutes {see, People v. Davis, 43
N„Y.2d 17, 30, 400 N.Y.S.2d 735, 371 N.E.2d 456,
cert, denied 435 U.S. 998, 98 S.Ct. 1653, 56
L.Ed.2d 88, rearg. dismissed 61 N.Y. 2d 670, 472
N,Y.S.2d 1028, 460 N.E.2d 232). However, the
New York provisions are unconstitutional for the
same reason as the Federal Kidnaping Act: by stat-
utory mandate, the death penalty hangs over only
those who exercise their constitutional rights to
maintain innocence and demand a jury trial. Thus,
Jackson compels us to invalidate these provisions,
just as it has compelled other State high courts to
invalidate their capital plea provisions with the
same constitutional infirmity {see, e.g., *GllStute v,
Johnson, 134 N.IT. 570, 595 A.2d 498 (1991],
supra; Commonwealth v. Colon-Cruz, 393 Mass.
150, 470 N.E.2d 116 [1984]; State v Frampton, 95
Wash. 2d 469, 627 P.2d 922 [1981]; State v. Funi-
cello, 60 N.J. 60, 286 A.2d 55 [1972], cert, denied
svb nom. New Jersey v. Presha, 408 U.S. 942, 92
S.Ct. 2849, 33 L.Ed.2d 766; see also. Spiders v.
State, 84 Nev. 23, 436 P.2d 18 [1968], supra
[decided prior to the Supreme Court's decision in
Jackson ] ).

By contrast, the death penalty statutes of States
that have rejected a Jackson challenge, with one ex-
ception, provide for the possibility of a death sen-
tence upon a guilty plea {see, e.g.. State v. Mann,
1996 WL 465764, 1996 Tenn.Crim.App. LEXIS
508, affd 959 S.W.2d 503, cert, denied 524 U.S.
956, 118 S.Ct. 2376, 141 L.Ed.2d 743; Conger v.
Worden, 89 Nev. 263, 510 P,2d 1359), The excep-

tion, Arkansas, avoided a Jackson problem because
the Trial Judge, not the jury, made the final determ-
ination of whether the death penalty would be im-
posed, and because guilty pleas were permitted
only after the prosecutor waived the death penalty (
see , e.g., Ruiz v. State, 275 Ark, 410, 630 S.W.2d
44, cert, denied 459 U.S. 882, 103 S.Ct. 181, 74
L.Ed.2d 148).

III.

[5] The question remains whether the entire
death penalty statute must be invalidated, as de-
fendants urge, or whether the challenged provisions
may be severed, leaving the statute otherwise oper-
ational. The answer depends on whether “the legis-
lature, if partial invalidity had been foreseen, would
have wished the statute to be enforced with the in-
valid part exscinded, or rejected altogether” (
People ex rel. Alpha Portland Cement Co. v.
Knapp, 230 N.Y. 48, 60, 129 N.E. 202 [Caidozo,
J.], rearg. denied23l N.Y. 516, 132 N.E. 870, cert .
denied sub nom. ***284 **1208 State Tax Commr.
v. People ex rel. Alpha Portland Cement Co., 256
U.S. 702,41 S.Ct. 624, 65 L.Ed. 1179). If removing
particular provisions while leaving the remainder
intact would result in a law the Legislature would
not have intended, the entire statute must be
stricken (see, e.g., Matter of New York State Super-
fund Coalition v. New York State Dept, of Envtl.
Conservation, 75 N.Y.2d 88, 94, 550 N,Y.S.2d 879,
550 N.E. 2d 155).

In arguing that the death penalty itself should
be stricken, defendants seek support from Jackson,
in which the Supreme Court struck the death pen-
alty from the Federal Kidnaping Act. In that statute,
it was the death penalty provision itself, which was
added two years after enactment of the original stat-
ute, that caused the constitutional infirmity. When
enacted in 1 932, the Federal Kidnaping Act did not
provide for capital punishment; it merely defined
the Federal crime of kidnaping and set the punish-
ment as imprisonment for a term of yearn, *628 to
be decided by the trial court (see, 47 U.S. Stat 326).
Regardless of how a defendant was convicted under

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1198

706 N.E.2d 1201 Page 9

92 RY.2d 613, 706 N.E,2d 1201, 684 N.Y.S.2d 177, 1998 NY. Slip Op. 11377
(Cite as: 92 N.Y.2d 613, 706 N.E.2d 1201, 684 N.Y.S.2d 177)

the original Act, the potential penalties were the
same.

The Act was amended in 1934, however, to
change the penalty structure, providing for the im-
position of the death penalty only on a jury recom-
mendation, but a prison term otherwise {see, 48
U.S. Stat 781). It was the addition of the death pen-
alty in this manner, which resulted in different
le vels of punishment depending on whether defend-
ants exercised their constitutional rights, that
rendered the statute unconstitutional. Therefore, it
was only through excision of the Act's death pen-
alty clause that the constitutional infirmity could be
cured. The result was the same sentencing system
as the one contained in the original Act-those con-
victed would be sentenced by the court to imprison-
ment for a term of years. At the same time, by re-
moving only the death penalty clause, the Court
was able to preserve the purpose of the Act-to make
interstate kidnaping a Federal crime.

[6] In contrast to the Federal Kidnaping Act, it
is clear from the face of the statute before us that
the very purpose of the Legislature and Governor in
enacting the statute was to provide for capital pun-
ishment in New York. The statute’s severability
clause indicates that the lawmakers would not have
wanted the entire statute to fail if the particular pro-
visions regarding pleas were declared unconstitu-
tional :

“If any section, part or provision of this act shall
be declared unconstitutional or invalid or inef-
fective by any court of competent jurisdiction,
such declaration shall be limited to the section,
part or provision directly involved in the contro-
versy in which such declaration was made and
shall not affect any other section, part or provi-
sion thereof’ (L. 1995, ch. I, § 37).

Nor is invalidation of the death penalty neces-
sary to obviate the Jackson problem: excision of the
capital pleading provisions eliminates the burden
on constitutional rights prohibited by Jackson,
since without those provisions there is only one

maximum penalty for first degree murder, Further-
more, the plea provisions are discrete, and by no
means vital to the remainder of the statute. Their re-
moval would not affect the classification of capital
offenses, or the conduct of the trial or penalty phase
of capital cases.

[7][8] Finally, while CPL 220.10(5)(e) and
220.30(3)(b)(vti) relate exclusively to pleas in first
degree murder cases and *629 “needlessly” encour-
age guilty pleas in violation of Jackson, CPL
220.60|2|{a) is not limited to first degree murder
cases, 11 nor does it, in the absence of CPL
220. 1 0(5Xe), violate Jackson, Therefore, only CPL
22Q.iO(5Xe) and 220.30(3Xb)(vu) must be stricken.

Under the resulting statute, a defendant***185
**1209 may not plead guilty to first degree murder
while a notice of intent to seek the death penalty is
pending.

FN6. By its terms, CPL 220.60(2)(a) al-
lows defendants who have pleaded not
guilty to any indictment to withdraw tire
plea before a verdict, subject to certain
limitations, including the limitations of
CPL 220.10(5). Thus, CPL 220.60(2)(a)
affects many cases unrelated to first degree
murder.

PN7. While there is nothing Objectionable
in the portion of the two unconstitutional
provisions that merely allows a defendant
to plead guilty to first degree murder with
the permission of the court and consent of
the People, saving this portion of the pro-
visions would not eliminate the Jackson
problem. Since by statute only a juty can
impose a death sentence and there is no
procedure for impaneling a jury to sen-
tence a defendant after a guilty plea {see,
CPL 400.27), defendants could still avoid
the possibility of death only by pleading
guilty.

We realize this result will reduce the flexibility
of both prosecutors and defendants who wish to

€> 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1199

706 N.E.2d 1201 Page 10

92N.Y,2d 613,706 N.E.2d 1201,684 N.Y.S.2d 177, 1998 N.Y. Slip Op. 1 1377
(Cite as: 92 N.Y.2d 613, 706 NX2d 1201, 684 N.¥.S.2d 177)

plea bargain in capital cases. Indeed, our reversal in
these cases may well have an ironic twist in that
capital defendants will have fewer opportunities to
avoid th© possibility of the death penalty. We are
also aware that the Supreme Court has not revisited
Jackson and Its progeny in 20 years, and that these
cases might be decided differently today in light of
the increased significance of plea bargaining and
substantial changes in the administration of capital
punishment. The fact remains, however, that al-
though the Supreme Court itself may revisit its in-
terpretation of Federal constitutional provisions,
State courts are bound under the Federal Constitu-
tion to follow controlling Supreme Court precedent,
and Jackson compels the result here.

While reducing the flexibility of plea bargain-
ing in eapital cases, excision of the unconstitutional
provisions does not prevent pleas of guilty to first
degree murder when no notice of intent to seek the
death penalty is pending, since defendants in that
situation face the same maximum sentence regard-
less of how they are convicted. Nor does the result-
ing statute prevent a defendant from pleading guilty
to another offense not punishable by death, even
when a notice of intent to seek the death penalty is
pending, since nothing in Jackson prohibits impos-
ing different penalties for different crimes. As the
Supreme Court made clear in upholding the pica of
a defendant charged with first degree murder who
pleaded guilty to *630 second degree murder, a
State “may prohibit the practice of accepting pleas
to lesser included offenses under any circum-
stances," but “this is not the mandate of the Four-
teenth Amendment and the Bill of Rights" {North
Carolina v. Alford, 400 US, at 39, 91 S.Ct. 160). (
See also , State v. Johnson, 134 N.H. 570, 575, 595
A.2d 498, 501, supra [“It is well settled that a stat-
ute cannot permit a defendant who insists upon a
jury trial and is convicted of capital murder to be
sentenced to death, while allowing a defendant who
pleads guilty to the same crime to escape the pos-
sibility of such a sentence" (emphasis supplied) }.)
Thus, while & defendant may not plead guilty to
first degree murder while a notice of intent to seek

the death penalty is pending, plea bargaining to
lesser offenses even when a notice of intent is
pending, or to first degree murder in the absence of
a notice of intent, remains unaffected.

Given our conclusion under the Federal Consti-
tution, we do not reach appellants' arguments under
the New York State Constitution. We agree with
the Appellate Division that appellants 1 procedural
contentions in Matter of Rel in are without merit.

Accordingly, in each case, the order of the Ap-
pellate Division should be reversed, without costs,
and judgment granted declaring that CPL
220.10(5)(e) and 220.30(3)(b)(vii) arc unconstitu-
tional and are deemed severed and stricken.

Judges BBLLACOSA, SMITH, LEVINE,
OPAR1CK and WESLEY concur.

In each case: Order reversed, etc.

N.Y.,1998.

Hynes v. Tomei

92 N.Y.2d 613, 706 N.E.2d 1201, 684 N.Y.S.2d
177, 1998 N Y. Slip Op. 11377

END OF DOCUMENT

<© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1200

Westiaw.

119 S.Ct. 2359

527 U.S. 1015, 1 19 S.Ct. 2359, 144 L.Ed.2d 254, 67 USLW 3614, 67 USLW3753, 67 USLW 3757
(Cite as: 527 US. 1015)

H

Supreme Court of the United States
Charles J. HYNES, District Attorney of Kings
County, New York, e£ ah, petitioners,
v,

Albert TOMEI, Justice, Supreme Court of New
York, etal.

No. 98-1533.

June 14, 1999.

Case below, 92 N.Y.2d 613, 684 N.Y,S.2d 177,
706 N.E.2d 1201.

Motion of respondent Angel Mateo for leave
to proceed in forma pauperis granted. Motion of re-
spondent Michael Hale for leave to proceed in
forma pauperis granted. Petition for writ of certior-
ari to the Court of Appeals of New York denied.

U S.,1999
Hynes v. Tomet

527 U.S. 1015, 119 S.Ct 2359, 144 L.Ed.2d 254,
67 USLW 3614, 67 USLW 3753, 67 USLW 3757

END OF DOCUMENT

Page i

© 201 i Thomson Reuters. No Claim toOrig. US Gov. Works.

1201

We'stlaw.

712 N.E.2d 692 Page!

93 N.Y.2d 327,712 N,E.2d 692, 690 N.Y.S.2d 527, 1999 N.Y. Slip Op. 04493
{Cite as: 93 N.Y.2d 327, 712 N.E.M 692, 690 N.Y.S.2d 527)

Court of Appeals, of New York.

The PEOPLE of the State of New York, Appellant,
v.

Angel MATEO, Respondent.

May 13, 1999.

Defendant charged under 22-count indictment
for criminal activities including four intentional
murders moved to dismiss capital murder counts of
indictment. The Monroe County Court, John J.
Connell, X., granted motion, and state appealed. The
Supreme Court, Appellate Division affirmed, 249
A.D.2d 894, 672 N,Y.S.2d 594, and state sought
further appellate review. 'Hie Court of Appeals,
Wesley, J., granted review and held that: (1) evid-
ence submitted to grand jury did not establish that
killings were “committed in a similar fashion” as
required to support charge of capital murder, and

(2) Court of Appeals would decline to provide cal-
culus of “similarity” for future cases.

Affirmed.

West Headnotcs

[1] Homicide 203 139

203 Homicide
203IX Evidence

203IX(G) Weight and Sufficiency

203kt 138 First Degree, Capital, or Ag-
gravated Murder

203kl 1 39 k. In General. Most Cited

Cases

(Formerly 203k253(l)>

Evidence presented to grand jury concerning
four murders alleged to have been committed by
defendant over 24-month period did not establish
that killings were “committed in a similar fashion”
as required to support charge ot capital murder; vic-
tims were of different ethnic and racial back-
grounds and ranged in age from 1 6 to 20, four dif-

ferent types of firearms were used to commit
murders, motives for each shooting differed, as did
wounds inflicted upon victims, and locations of
killings were different. McKinney's Penal Law §
125.27, subd. l(a)(xi).

[ 2 ] Criminal Law 110 C=>372(1)

1 1 0 Criminal Law
11 OX VII Evidence

1 10XVII(F) Other Offenses

II0k372 Acts Pari of Series Showing Sys-
tem or Habit

1 10k372(!) k. In General. Most Cited

Cases

“Identity exception" for admission of un-
charged crimes at trial is used in limited circum-
stances, when defendant employs some unique, un-
usual, or distinctive modus operand! in uncharged
crime that is relevant to proving his identity as per-
petrator of crime charged.

[3] Criminal Law 110 €=^>372(4)

1 1 0 Criminal Law
1 10XVII Evidence

1 1 OX VI 1(F) Other Offenses

1 10k372 Acts Part of Series Showing Sys-
tem or Habit

1 10k372{4) k. Homicide. Most Cited

Cases

Case law concerning identity exception for ad-
mission of uncharged crimes at trial does not estab-
lish template for defining phrase “committed in a
similar fashion” under multiple-murder provision of
capital murder statute. McKinney's Penal Law
125.27, subd. l(a)(xi).

[4] Criminal Law 110 €===>1134.32

110 Criminal Law
1 10XXIV Review

1 10XX1V(L) Scope of Review in General
1 10XX1V(L)4 Scope of Inquiry

1 10k! 134.32 k. Particular Issues in

€> 201 1 Thomson Reuters, No Claim to Orig. US Gov. Works.

1202

712N.E.2d 692 Page 2

93 N.Y,2d 327, 712 N.E.2d 692, 690 N.Y.S.2d 527, 1999 N.Y. Slip Op. 04493
(Cite as: 93 N.Y.ld 327, 712 N,E.2d 692, 690 N.Y,S.2d 527)

General, Most Ciicc! Cases
(Formerly 1 10kt 134(3))

Court of Appeals would decline to provide cal-
culus of “similarity” by which all future cases in-
volving capital murder charges based upon multiple
murders “committed in a similar fashion” might be
considered; to do so would ignore relative nature
and contextual considerations inherent in any ana-
lysis and application of “similarity” clement, and
process of setting prospective, applied particulariz-
ation did not lend itself to more definite resolution
of nature of “similarity , " , beyond determination of
facts presented in particular case.

***528*328**693 Howard R. Relin, District Attor-
ney of Monroe County, Rochester (Wendy Evans
Lehmann, of counsel), for appellant.

Office of Capital Defender, Rochester (Joseph T.
Flood and William T. Easton, of counsel), for re-
spondent.

*329 William J. Fitzpatrick, District Attorney of
Onondaga County, Syracuse (lames P. Maxwell, of
counsel), and Susan L. Valle for New York State
District Attorneys Association, amicus curiae.

OPINION OF THE COURT

WESLEY, J.

Defendant was charged under a 22-count in-
dictment for an array of criminal activities, includ-
ing the intentional murders of four people, in
Rochester, New York. According to the People's
proof at the Grand Jury, Joangel Toro and Johvanny
Diaz were murdered in the City of Rochester during
the early morning hours of August 6, 1995 while
they stood next to each other at a telephone booth.
Defendant and his cousin (who was allegedly hired
to “kneecap” Diaz) armed themselves with .38
caliber and .45 caliber handguns, and sought out
Diaz. Wearing stocking-style masks to disguise
their identity, defendant and his cohort shot Diaz
eight times, including three shots to the head. Toro
was shot three times, including a shot to the head.

The Grand Jury also heard testimony concern-
ing the murder of Peter Holley, who was shot on
September 22, 1995 in the *330 City of Rochester.
Following a report from defendant's cousin that a
bicycle and gold chain were stolen from him, de-
fendant took a sawed-off shotgun and, along with
his cousin, drove around the west side of Rochester
looking for the thief. The cousin identified Holley,
whereupon defendant loaded his shotgun, pulled up
behind Holley's vehicle and shot him in the neck
and head.

Lastly, there was testimony before the Grand
Jury that on November 2, 1996, Juan Rodriguez-Ma-
tos was forced at gunpoint into defendant’s vehicle.
Matos was driven to defendant's home, handcuffed
***529 and placed in a chair. Defendant interrog-
ated Matos about the whereabouts of a former girl-
friend. When Matos failed to provide satisfactory
answers, defendant ordered that Matos be placed in
a bathroom. Later, Matos was taken out of the bath-
room, led to the basement, blindfolded and ex-
ecuted with a .25 caliber pistol shot through the left
side of the head by either defendant or his wife, at
defendant's command. Defendant then placed a
plastic bag over Matos' head and left him lying on
the basement floor until he died several hours later.
Defendant, his wife and brother wrapped Matos'
body in curtains and clothing, placed the body into

a car and drove to a dead-end street where they
FN1

dumped the body.

FN1. Defendant was convicted of first de-
gree murder for the murder of Matos and
was sentenced to death. He has filed a no-
tice of appeal to this Court,

This appeal concerns eounts II and 12 of the
indictment, which charge defendant with murder in
the first degree pursuant to Penal Law § 125.27
(t)(a)(xi). This section imposes criminal liability on
anyone who;

“intentionally caused the death of two or more
additional persons within the state in separate
criminal transactions within a period of twenty-

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1203

?12N,E.2d692 Page 3

93 N.Y.2d 327, 712 N.B.2d 692, 690 N.Y.S.2d 527, 1999 N.Y. Slip Op, 04493
(Cite as; 93 N.Y.2d 327, 7J2 N.E.2U 692, 690 N.YiUd 527)

four mouths when committed in a similar fashion
oi pursuant to a common scheme or plan."

The People charged defendant on the theory
that he acted “in a similar fashion” when, **694
within a 24-month period, he intentionally
murdered Matos, Diaz, Toro and Holley.

County Court dismissed these counts, conclud-
ing that the evidence presented to the Grand Jury
was insufficient to support a charge pursuant to this
subsection- The court examined the legislative his-
tory of the statute and concluded that Penal Law §
1 25.27(1 X^X**) “reflects an executive and legislat-
ive *331 intent to deal with serial murders” (175
Misc.2d 192, 216, 664 N.Y.S.2d 981). The court
also noted that the statute draws a distinction
between murders “committed in a similar fashion”
and those committed “pursuant to a common
scheme or plan” as this distinction was developed
in People v. MoJineux, 168 N.Y. 264, 61 N.E. 286,
and its progeny. Relying on our Molinevx eviden-
tiary jurisprudence, it concluded that “the context in
which the statute was debated and passed by the
Legislature, signed into law by the Governor and
promoted by those two branches of government was
aimed at protecting the public from the Son of Sam,
Ted Dundy and Arthur Shawcross-type serial
killers” (175 Misc.2d, at 217, 664 N.Y.S.2d 981).
The court rejected the People's arguments that the
murders were “committed in a similar fashion” and
determined that “[tjhere is nothing so unique, ritu-
alistic, [or] signature-like about these homicides
that would support the Grand Jury's decision to in-
dict the defendant under this statute” (175 Misc.2d,
at 218, 664 N.Y.S.2d 981).

The Appellate Division affirmed (249 A,D.2d
894, 672 N,Y.S.2d 594) although it did not embrace
County Court’s reasoning. The Court noted that
“[cjven affording the phrase ‘in a similar fashion’
its plain meaning * * * the evidence before the
Grand Jury was legally insufficient * * * Because
the murders did not adequately resemble each other
with respect to motive, method, and surrounding
circumstances, they were not ‘committed in a simil-

ar fashion’ ” (id, at 895, 672 N.Y.S.2d 594), The
Chief Judge of this Court granted leave to appeal.

The People argue that the Appellate Division
and the trial court erred in their interpretation of the
phrase “committed in a similar fashion” and that
both courts applied an incorrect standard in assess-
ing whether a prima facie case was established at
the Grand Jury. According to the People, employ-
ing a “common sense” definition of this phrase
leads to only one conclusion: that the evidence be-
fore the Grand Jury was sufficient to establish that
***530 the murders in question were “committed in
a similar fashion.”

Defendant, on the other hand, contends that our
jurisprudence requires that Penal Law § 125.27
(t)(a)(xi) be construed according to the evidentiary
principles of Molinevx. In urging us to adopt
County Court’s reasoning, defendant argues that
when words or phrases have a well -settled legal
meaning in our jurisprudence, it is presumed that
the Legislature understands that meaning when it
adopts a statutory provision which includes that
language ( Matter of Moran Towing & Tramp. Co.
v. State Tax Comm'n, 72 N.Y.2d 166, 173, 531
N.Y.S.2d 885, 527 N.E.2d -763; McKinney’s
Cons.Laws of N.Y., Book 1, Statutes § 233).

[1J *332 We agree with the lower court de-
terminations that die evidence presented to the
Grand Jury was insufficient to establish that the
killings at issue here were “committed in a similar
fashion” pursuant to Penal Law § 125.27(l)(a)(xi)
and therefore affirm.

It is clear that the Legislature and the Governor
intended the phrase “committed in a similar fash-
ion” to include serial killings (see. Governor's
Mem. approving L.1995, ch. I, 1995 McKinney's
Session Laws of N.Y., at 2283; Bill Jacket, As-
sembly Codes Committee Mem. approving L.1995,
eh. 1; id, Atty. Gen. Mem. regarding L.1995, ch- 1;
see also, Assembly Debate on Assembly Bill
A4843, Mar. 6, 1995, at 126, 336, 405, 406, 427
[statements of Assembly Members Straniere, Mur-

© 2011 Thomson Reuters. No Claim to Orig, US Gov. Works.

1204

712 N.E.2d 692 Page 4

93 N,Y,2d 327, 712 N.E.2d 692, 690 N.Y.S.2d 527, 1 999 N.Y. Slip Op. 04493
(Cite as; 93 N.Y,2d 327, 712 N.E,2d 692, 690 N.Y,S.2d 527)

laugh, McEneny and Tonko] ). Contrary to defend-
ant’s contention, however, this phrase does not have
a well-settled legal meaning in our jurisprudence.

[2][3]-In analyzing the phrase, County Court
looked to our case law concerning the identity ex-
ception for the admission of uncharged crimes at
trial, first articulated in People v. MoJineux (supra).
This exception is used in limited circumstances,
when the defendant employs some unique, unusual,
or distinctive modus operandi in an uncharged
**695 crime that is relevant to proving his identity
as the perpetrator of the crime charged (see. People
v. Beam, 57 N.Y.2J 241, 253, 455 N.Y.S.2d 575,
441 N.E.2d 1093; People v. Condon, 26 N.Y.2d
139, 144, 309 N.Y.S.2d 152, 257 N.E.2d 615;
People v. Allweiss, 48 N.Y.2d 40, 47-48, 421
N.Y.S.2d 341, 396 N.E.2d 735). Although County
Court correctly held that the proof fell short of es-
tablishing that the crimes were “committed in a
similar fashion,” we disagree with its conclusion
that these cases establish a template for defining the
phrase “committed in a similar fashion” under Pen-
al Law § I25.27(l)(a)(xi). The precise phrase is not
used in our Molineux line of cases, and nothing in
the history of the death penalty statute suggests that
the Legislature intended to adopt either the ra-
tionale or the standards governing the identity evid-
entiary exception to define this classification of
capital murder.

FN2. Moreover, although County Court
determined that there was “nothing so
unique, ritualistic, [or] signature-like”
about these homicides, it misinterpreted
our Molineux jurisprudence in this regard.
This Court has articulated the identity ex-
ception standard as “unique,” “unusual” (
People v, Condon, supra) and “distinctive”
(People v. Beam, supra). However, in
Beam we explicitly stated that in order to
establish a modus operandi, “ it is not ne-
cessary that the pattern be ritualistic for it
to be considered unique” (id., at 253, 455
N.Y.S.2d 575, 441 N,E.2d 1093 [emphasis

added] ).

[4] Both defendant and the People ask us to
fashion a set of criteria 1o define the requirements
of the statutory phrase at *333 issue; they ask us to
provide a calculus of "similarity” by which all fu-
ture cases might be plotted. To do so, however,
would ignore the relative nature and contextual
considerations inherent in any analysis and applica-
tion of the "similarity” element. For this reason, the
typical process by which this Court fulfills its adju-
dicative responsibility in setting prospective, ap-
plied particularization does not lend itself to a more
definite resolution of the ***531 nature of
“similarity” beyond the determination of the facts
presented in this case.

Here, the murder victims were of different eth-
nic and racial backgrounds and ranged in age from
16 to 20. A .45 caliber handgun, a .38 caliber hand-
gun, a .25 caliber handgun, and a sawed-off shot-
gun were the varied weapons used to commit these
murders. The motives for each shooting differed, as
did the wounds inflicted by defendant upon his vic-
tims. Moreover, the locations of these multiple
killings were different; two occurred on a public
sidewalk during the same incident, one occurred as
defendant sat in a car on a public street and one
transpired in defendant's basement while the victim
was handcuffed and blindfolded. The common de-
nominator of these crimes is that four young men
were murdered by firearms. By any standard, the
evidence before the Grand Jury was legally insuffi-
cient to establish the “committed in ft similar fash-
ion” element of the statute.

Accordingly, the order of the Appellate Divi-
sion should be affirmed.

Chief Judge KAYE and Judges BELLACOSA,
SMITH, LEVINE, CIPARICK and ROSENBLATT
concur.

Order affirmed.

N.Y.,1999.

People v. Mateo

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1205

712N.B.2d692 Page 5

93 N.Y.2d 327, 712N.E.2d 692, 690 N,Y,S.2d 527, 1999 N.Y. Slip Op. 04493
(Cite as; 93 N.Y.2d 327, 712 N.E.2d 692, 690 N.Y„S.2d 527)

93 N.Y.2d 327, 712 N.E.2d 692, 690 N.Y.S.2d 527,
1999 N.Y. Slip Op. 04493

END OF DOCUMENT

© 20 1 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1206

Westiaw,

811 N.E.2d 1953 Page 1

2 N.Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01 143
(Cite as: 2 N.Y.3d 393, 91 1 N,E.2d 1053, 779 N.Y.S.2d 399)

H

Court of Appeals of New York,

The PEOPLE of the State of New York, Respond-
ent,
v.

Angel MATEO, Appellant.

Feb. 24, 2004.

Background: Defendant was convicted in the
Monroe County Court, John J., Connell, J>, of first
degree murder, first degree kidnapping, and other
counts, and was sentenced to death. Defendant ap-
pealed.

Holdings: The Court of Appeal, Kaye, C.J., held
that:

(1) defendant was prosecuted under unconstitution-
al two-tiered penalty scheme procedure, requiring
that sentence of death be set aside;

(2) prosecution did not posit in defendant’s trial a
theory of first degree murder factually inconsistent
from that argued at his wife's trial;

(3) command theory for accomplice liability for
first degree felony murder did not have to be con-
sidered by jury apart from actual killer theory and
jury did not have to be unanimous on a theory;

(4) evidence was sufficient to support conviction of
first degree felony murder;

(5) defendant spontaneously, aggressively and vol-
untarily confessed to suit his own purposes, and

(6) defendant opened door, during re-
cross-examination of investigator, to admissibility
of statements to police about three other murders.

Affirmed as modified by setting aside sentence
of death and remitting for resentencing.

G.B. Smith, J,, filed a dissenting opinion.

Rosenblatt, J., filed a dissenting opinion.

West Headnotes

[1] Sentencing and Punishment 3S0H C ^1626

350H Sentencing and Punishment
350HVIII The Death Penalty
350HVIII(A) Jn Genera!

350Hk!622 Validity of Statute or Regu-
latory Provision

350Hkl626 k. Procedure. Most Cited

Cases

Sentencing and Punishment 3S0H 789(10)

350H Sentencing and Punishment
350HVHI The Death Penalty
350HVI1I(G) Proceedings

350HVIII(G)4 Determination and Dispos-
ition

350Hkl789 Review of Proceedings to
Impose Death Sentence

3501Ikl789(10) k. Determination
and Disposition. Most Cited Cases

Although defendant had received favorable
pretrial ruling From trial court striking plea provi-
sions from death penalty statute, defendant was
prosecuted under unconstitutional two-tiered pen-
alty scheme procedure, since by the time defend-
ant's trial commenced, the intermediate appellate
court had declared plea provisions constitutional, in
a binding ruling, and state's highest appellate court
did not rule those provisions unconstitutional until
after defendant's trial, such that defendant could
have sought to avoid exposure to death sentence
only by waiving right to jury trial and pleading
guilty, requiring that sentence of death be set aside.
McKinney’s CPL §§ 220.10, subd. 5(e), 220.30,
subd. 3(b)(vii).

[2] Constitutional Law 92 ^^4629

92 Constitutional Law
92XXVII Due Process

92XXVI1(H) Criminal Law

92XXVII(H)4 Proceedings and Trial

© 2011 Thomson Reuters, No Claim to Orig. US Gov. Works.

1207

81IN,E.2d 1053 Page 2

2 N,Y.3d 383, 81 i N.E,2d 1053, 779 N.Y.S,2d 399, 2004 N.Y, Slip Op. 0) 143
(Cite as: 2 N.Y.3d 383, 811 N,E.2d 1053, 779 N.Y^.2d 399)

92k4627 Conduct and Comments of
Counsel; Argument

92k4629 k. Prosecutor. Most Cited

Cases

(Formerly 92k268(8))

Criminal Law 110 £=>1983

110 Criminal Law
1 10XXXI Counsel

1 10XXX1(D) Duties and Obligations of Pro-
secuting Attorneys

1 1GXXXI(D)1 In General

1 10kl983 k. Assertion of Theory In-
consistent with Theory Previously Asserted. Most
Cited Cases

(Formerly I I0k700(l))

Prosecution did not violate due process by pos-
iting in defendant’s trial a theory of first degree
murder factually inconsistent from that argued at
his wife's trial, where prosecution in wife’s trial ar-
gued that wife pulled trigger at defendant’s behest
and argued in defendant's trial either that defendant
was shooter or that wife pulled trigger under de-
fendant's orders, defendant and accomplice both
told police that they were the one who pulled the
trigger, defendant was portrayed at both trials as the
driving force behind the crime, and prosecution
never discredited evidence previously offered to
convict wife. U.S.C.A. Const. Amend. 14.

(31 Criminal Law 110 £=>2033

1 10 Criminal Law
UOXXXI Counsel

1 10XXX1(D) Duties and Obligations of Pro-
secuting Attorneys

1 10XXXI(D)5 Presentation of Evidence
1 H>k2032 Use of False or Perjured

Testimony

— - }l0k2033 k. In General. Most Cited

Cases

(Formerly H0k706(2))

A prosecutor may not knowingly present ad-
missible but false information to a jury.

HJ Homicide 203 0^573(1)

203 Homicide
203II Murder

203k568 Parties to Offense
203k573 Accessories

203k573(l) k. In General, Most Cited

Cases

Homicide 203 C=>614
203 Homicide

203III Homicide in Commission of or with In-
tent to Commit Other Unlawful Act
203111(B) Murder

203k6l 1 Multiple Perpetrators

203k6l4 k. Aiding, Abetting, or Other
Participation in Offense. Most Cited Cases

An actor may be found guilty as an accessory
for first degree felony murder only when the theory
proved by the prosecution is that the defendant
commanded the killing; however, accessorial liabil-
ity for other forms of first degree murder is not lim-
ited. McKinney’s Penal Law §§ 20.00, 125.27
(l)(a)(vH).

(5] Criminal Law 110 £=>59(2)

1 IQ Criminal Law

1 10V1I Parties to Offenses

1 10k59 Principals, Aiders, Abettors, and Ac-
complices in General

U0k59(2) k. Existence of Distinction.
Most Cited Cases

There is no distinction between liability as a
principal and criminal culpability as an accessory.

[6| Constitutional Law 92 £=34752

92 Constitutional Law

92XXVII Due P rocess

92XXV1I(H) Criminal Law
92XXVII(H)7 Jury

92k4751 Necessity; Right to Jury Trial
92k4752 k. In General. Most Cited

Cases

(Formerly 92k267)

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1208

81 1 N.Ev2d 1053 Page 3

2 N.Y.3d 383, 8 1 1 N.E.2d 1053, 779 N.Y.S,2d 399, 2004 N. Y. Slip Op. 01 143
(Cite as: 2 N.YJd 383, 811 N.E.2d 1053, 779 N.Y.S,2d 399)

Constitutional Law 92 £^>4762

92 Constitutional Law
92XXVII Due Process

92XXVrT(H) Criminal Law
92XXVII(H)7 Jury

92k4762 k- Unanimity, Most Cited

Cases

(Formerly 92k267, 92k268(2.1))

Criminal Law 110 «£s=o872.5

110 Criminal Law
110XX Trial

1 10XX(K) Verdict

UOk.872.5 k. Assent of Required Number
of Jurors. Most Cited Cases

Homicide 203 £=>614

203 Homicide

203111 Homicide in Commission of or with In-
tent to Commit Other Unlawful Act
203111(B) Murder

2031(611 Multiple Perpetrators

203k6l4 k. Aiding, Abetting, or Other
Participation in Offense. Most Cited Cases

Due process did not require that command the-
ory for accomplice liability for first degree felony
murder be considered by jury apart from actual
killer theory, or that jury be unanimous on one the-
ory or the other, where Legislature expressly inten-
ded that the two theories coexist in same subpara-
graph of statute, and there was no factual dispute
that defendant kidnapped the victim and decided to
execute victim, so that whether defendant pulled
trigger or handed gun to his wife and commanded
her to shoot victim were simply alternatives to a
common end. U.S.C.A. Const. A mend. 14; McKin-
ney's Penal Law § 1 25.27(1 )(a)(vii).

[7} Criminal Law 110 £=>866

110 Criminal Law
110XX Trial

1 10XX(J) Issues Relating to Jury Trial

n0k866 k. Manner of Arriving at Ver-

dict. Most Cited Cases
(Formerly 110k872.5)

There is no general requirement that the jury
reach agreement on the preliminary factual issues
which underlie the verdict.

\8] Homicide 203 €=1139

203 Homicide
203IX Evidence

2031X(G) Weight and Sufficiency

203ktl38 First Degree, Capital, or Ag-
gravated Murder

203kll39 k. In General. Most Cited

Cases

Evidence was sufficient to support conviction
of first degree felony murder, regardless of whether
defendant pulled trigger or handed gun to his wife
and commanded her to shoot, although there was no
direct evidence that he told her to kill victim; there
was no question that defendant engineered and car-
ried out armed kidnapping of victim, that defendant
decided to kill him, handcuffed him, and led him
down to basement, or that victim died of an inten-
tional gunshot wound to the head, defendant admit-
ted that he had made up his mind to kill victim, that
he gave gun to wife and stood near as she pulled
trigger, and that he directed wife and brother in dis-
posing of the body, and defendant also stated to po-
lice that he shot the victim himself, such that no
matter which version of defendant's story the jury
credited, it was justified in finding that defendant
was squarely in charge of the kidnapping and
shooting of victim.

(9) Criminal Law 110 0=1159,2(3)

1 10 Criminal Law
1 10XXIV Review

1 10XXIV(P) Verdicts

1 10k 1 159 Con elusive ness of Verdict

UOkl 159 .2 Weight of Evidence in

General

1 1 Okl 1 59.2(3) k. Verdict Suppor-
ted by Evidence. Most Cited Cases

© 201 1 Thomson Reuters. No Claim to One. US Gov. Works.

1209

811 N.E.2d 1053 Page 4

2 N.Y,3d 383, 81 1 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01143
(Cite as; 2 N.Y.3d 383, 811 N.E,2d 1053, 779 N,Y.S.2d 399)

Criminal Law 110 €=>1159,2(8)

1 JO Criminal Law
llOXXIV Review

1 10XXIV(P) Verdicts

11 Ok 1139 Conclusiveness of Verdict

110kll59.2 Weight of Evidence in

General

1 lOkl 159.2(8) k. Inferences or Hy-
potheses from Evidence, Most Cited Cases

Standard of appellate review of the legal suffi-
ciency of the evidence in a criminal trial is whether
there is any valid line of reasoning and permissible
inferences which could lead a rational person to the
conclusion reached by the jury on the basis of the
evidence at trial.

1 10] Sentencing and Punishment 350H
1788(5)

350H Sentencing and Punishment
350HV1II The Death Penalty
350HVIH(G) Proceedings

350HVIII(G)4 Determination and Dispos-
ition

350HM788 Review of Death Sentence
,350Hkl 788(5) k. Scope of Review.
Most Cited Cases

In a capital case in which a death sentence has
been imposed. Court of Appeals is constitutionally
required to review the facts, and inquiry is distinct
from traditional appellate review for legal suffi-
ciency. McKinney's Const. Art. 6, §§ 3, 5.

fill Criminal Law 110 €==>1159.2(1)

110 Criminal Law
1 10XXIV Review
UOXXIV(P) Verdicts

1 1 Okl J 59 Conclusiveness of Verdict

11 0k 1159.2 Weight of Evidence in

General

H Okl 159,2(1) k. In General, Most

Cited Cases

Weight of the evidence review recognizes that
even if all tire elements and necessary findings are

supported by some credible evidence, the court
must examine the evidence further.

(12] Criminal Law 110 €=*11 59.2(8)

110 Criminal Law
11 0XXIV Review
U0XXIV(P) Verdicts

1 1 0k 1159 Conclusiveness of Verdict

It Okl 159.2 Weight of Evidence in

General

110k! 159.2(8) k, Inferences or Hy-
potheses from Evidence. Most Cited Cases

Criminal Law 110 €£=>1159.2(9)

1 10 Criminal Law
1 10XXIV Review

II OXXIV(P) Verdicts

1 1 Okl 1 59 Conclusiveness of Verdict

11 Okl 159.2 Weight of Evidence in

General

11 Okl 159.2(9) k. Weighing Evid-
ence. Most Cited Cases

Criminal Law 110 €=>1159.3(3.1)

1 10 Criminal Law
1 10XXIV Review
1 10XXIV(P) Verdicts

1 10k 1 159 Conclusiveness of Verdict
1 1 Okl 159.3 Conflicting Evidence

1 10k 11 59.3(3) Verdict Supported

by Evidence

1 10kl 159.3(3. l)k. In General.

Most Cited Cases

If based on all the credible evidence a different
finding would not have been unreasonable, then the
appellate court must, like the trier of fact below,
weigh the relative probative force of conflicting
testimony and the relative strength of conflicting
inferences that may be drawn from the testimony; if
it appears that the trier of fact has failed to give the
evidence the weight it should be accorded, then the
appellate court may set aside the verdict.

[13] Criminal Law HO €=1159.4(2)

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1210

8UNJ5.2d 1053 Page 5

2 N.Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S,2d 399, 2004 N.Y. Slip Op. 01 143
(Cite as: 2 N.Y. 3d 383, 811 N,E.2d 1053, 779 N.Y.S,2d 399)

1 10 Criminal Law
110XX1V Review
11 OXXIV(P) Verdicts

11 Ok 1 1 59 Conclusiveness of Verdict
1 1 Ok 1 159.4 Credibility of Witnesses
1 10k! 159.4(2) k. Province of Jury
or Trial Court Most Cited Cases

Great deference is accorded to the fact-finder’s
opportunity to view the witnesses, hear the testi-
mony and observe demeanor.

|14J Criminal Law 1 JO €=>1159,2(1)

1 10 Criminal Law
110XXJV Review

MOXXIV(P) Verdicts

1 lOkl 159 Conclusiveness ofVerdict

I lOkl 159.2 Weight of Evidence in

General

1 10k 1 159.2(1) k. In General. Most

Cited Cases

When an appellate court performs weight of the
evidence review, it sits, in effect, as a “thirteenth
juror.'’

115) Criminal Law 110 €=1159,2(7)

110 Criminal Law
I10XX1V Review
110XXJV(P) Verdicts

1 lOkl 159 Conclusiveness of Verdict

I I Okl 1 59.2 Weight of Evidence in

General

11 0k 1159.2(7) k. Reasonable
Doubt. Most Cited Cases

Appellate court must be sure that the evidence
is of such weight and credibility as to convince it
that the jury was justified in finding the defendant
guilty beyond a reasonable doubt.

{16} Criminal Law 110 €=>519(1)

1 JO Criminal Law
1 10XVII Evidence

1 iOXVII(T) Confessions

1 10k51 9 Voluntary Character in General

1 10k51 9(1) k. What Confessions Arc
Voluntary. Most Cited Cases

Criminal Law 110 0=520(2)

110 Criminal Law
11 OX VII Evidence

11 0XVTI(T) Confessions

1 H)k520 Promises or OtheT Inducements
1 10k520(2) k. Sufficiency of Promise
or Inducement in General. Most Cited Cases

Defendant spontaneously, aggressively and
voluntarily confessed to suit his own purposes, al-
though defendant claimed his will was overborne
by investigators who allegedly led him to believe
that he was receiving lenient treatment for family
members in exchange for confession; defendant
told investigators that he wanted to clear matters up
but wanted his family released, investigator told de-
fendant he would check on status of family mem~
bers but never promised lenient treatment, and fact
that investigators told defendant that family mem-
bers were released after defendant acknowledged
that gun was his did not render involuntary defend-
ant’s subsequent elaboration about murders.

{17} Criminal Law 110 €=>519(1)

1 10 Criminal Law
HOXVtl Evidence

1 10XVH(T) Confessions

l !0k5 19 Voluntary Character in General
1 10k519(l) k. What Confessions Are
Voluntary. Most Cited Cases

To determine voluntariness, courts review all
of the surrounding circumstances to see whether the
defendant's wilt has been overborne.

{18J Constitutional Law 92 €=4664(1)

92 Constitutional Law
92XXV1I Due Process

92XXVII(H) Criminal Law

92XXVH(H)5 Evidence and Witnesses
92k466i Statements, Confessions, and

Admissions

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1211

81 1 N.B.2d 1053 Page 6

2 N.Y.34 383, 81 1 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01143
(Cite as; 2 N.Y, 3d 383, 81 1 N,E.2d 1053, 779 N.Y.S.2J 399)

92k4664 Circumstances Under
Which Made; Interrogation

92k4664(l) k, In General. Most

Cited Cases

(Formerly 92k266.1(l)>

Coercive police activity is a necessary predic-
ate to the finding that a confession is not
“voluntary” within the meaning of the Due Process
Clause of the Fourteenth Amendment. U.S.C.A.
Const. A mend. 14.

[19| Criminal Law 110 €=>1158,13

1 10 Criminal Law
110XX1V Review

110XXIV(O) Questions of Fact and Findings
11 0k 11 58.8 Evidence

U 0k 1 158.13 k. Admission, State-
ments, and Confessions. Most Cited Cases
(Formerly 11 0k 1158(4))

In appellate court’s analysis of whether coer-
cive police activity rendered confession involun-
tary, the hearing court’s factual determinations,
resting largely upon its assessment of the credibility
pf the testifying officers, are entitled to deference.

[20] Sentencing and Punishment 350H £=>
1788(5)

350H Sentencing and Punishment
350HVHI The Death Penalty
350HVilI<G) Proceedings

350HVIII(G)4 Determination and Dispos-
ition

350Hk 1 788 Review of Death Sentence
350Hk 1788(5) k. Scope of Review.
Most Cited Cases

In a capital case, appellate court's obligation to
weigh evidence and determine whether jury was
justified in its conclusion beyond a reasonable
doubt extends to the hearing court's finding as to
the voluntariness of the confessions; these findings
must be reviewed by the same standards applicable
to a verdict of guilt

[21] Criminal Law 110 €=’412.1(1)

1 10 Criminal Law
1 10XVII Evidence

1I0XVII(M> Declarations

UGk4l I Declarations by Accused

H0k412.1 Voluntary Character of

Statement

1 10k4i2.i(l) k. In General. Most

Cited Cases

Investigators were not required to dissuade de-
fendant from making incriminating statements, or
disabuse him of his fantasy that he could control
the circumstances of the interrogation and win the
release of his family,

[22] Criminal Law 110 €=>412.1(4)

110 Criminal Law
1 10XVII Evidence

1 1 0XV1I(M) Declarations

1 10k4 1 1 Declarations by Accused

U0k412.1 Voluntary Character of

Statement

110k412.1(4) k. Interrogation and
Investigatory Questioning. Most Cited Cases

It is not an improper tactic for police to capital-
ize on a defendant's sense of shame or reluctance to
involve his family in a pending investigation absent
circumstances which create a substantial risk that a
defendant might falsely incriminate himself.

[23] Criminal Law llfi €^338(1)

1 10 Criminal Law
110XVJI Evidence

1 10XVII(D) Facts in Issue and Relevance
I I0k338 Relevancy in General

1 10k338(l) k. In General. Most Cited

Cases

Evidence is relevant if it has any tendency in
reason to prove any material fact,

[24] Criminal Law 110 €=3338(1)

! 10 Criminal Law
1 10XVII Evidence

1 10XV1I(D) Facts in Issue and Relevance

€> 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1212

811 N.E.2d 1053 Page?

2 N.Y.3d 383, 81 1 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 NY. Slip Op. 01 143
(Cite as: 2 N.Y.3d 383, 81 1 N,E.2d 1053, 779 N.Y.S.2d 399)

1 I0k338 Relevancy in General

110k338(l) k. In General. Most Cited

Cases

All relevant evidence is admissible at trial un-
less barred by some exclusionary rule.

[25] Criminal Law 110 €=>338(7)

1 1 0 Criminal Law
3 1 OX VII Evidence

1 10XVII(D) Facts in Issue and Relevance
1 10k338 Relevancy in General

1 10k338(7) k. Evidence Calculated to
Create Prejudice Against or Sympathy for Accused.
Most Cited Cases

Even where relevant evidence is admissible, it
may still be excluded in the exercise of the trial
court’s discretion if its probative value is substan-
tially outweighed by the potential for prejudice.

[26| Criminal Law 110 €=> 396 ( 1 )

1 10 Criminal Law
U0XVII Evidence

1 10XVIKI) Competency in General

1 1 0k396 Evidence Admissible by Reason
of Admission of Similar Evidence of Adverse Party
1 10k396(l) k. In General. Most Cited

Cases

When a party “opens the door” during cross-
examination to excluded evidence, the opponent
may seek to admit the excluded evidence in order to
explain, clarify and fully elicit the question that has
been only partially exposed on cross-examination.

|27| Criminal Law 110 €=>396(1)

1 10 Criminal Law
1 10XV11 Evidence

1 10XVII(I) Competency in General

110k396 Evidence Admissible by Reason
of Admission of Similar Evidence of Adverse Party
H0k396(l) k. In General. Most Cited

Cases

The “opening the door*’ theory must necessar-
ily be approached on a case-by-casc basis.

|28] Criminal Law 1 10 €=338(7)

110 Criminal Law
II 0XVII Evidence

1 10XVII(D) Facts in Issue and Relevance
1 10k338 Relevancy in General

1 10k338(7) k. Evidence Calculated to
Create Prejudice Against or Sympathy for Accused.
Most Cited Cases

Criminal Law 110 €=517(5)

110 Criminal Law
1I0XV1I Evidence

11 0XVII(T) Confessions

1 1 0k5 1 7 Admissibility in General

1 10k5 1 7(5) k. Necessity and Admiss-
ibility of Entire Statement. Most Cited Cases

Defendant opened door, during re-
cross-examination of investigator, to admissibility
of statements to police about three other murders,
to rebut defendant's claim that he falsely confessed
in an unreliable interrogation to killing victim to
cover for his wife; defense counsel asked questions
about extent of defendant's leg injury, timing of
events in interrogation, and concern for his family,
but prosecution had been precluded from presenting
evidence that defendant's motivation for confession
was his belief that he could set terms of interroga-
tion, claim responsibility for four murders, and win
his family's release, such that probative value out-
weighed potential for prejudice in prosecution in
which main issue was whether defendant was guilty
of second degree murder as accomplice or inten-
tional first degree murder either as shooter or as
person who commanded the shooter.

[29] Criminal Law 1 10 €=338(7)

1 10 Criminal Law
1 10XVII Evidence

1 10XVTI(D) Facts in Tssue and Relevance
1 10k338 Relevancy in General

1 10k338{7) k. Evidence Calculated to
Create Prejudice Against or Sympathy for Accused.
Most Cited Cases

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1213

811 N.E,2d 1053 Pages

2 N,Y.3d 383, 81 1 N,E.2d 1053, 779 N,Y.S.2d 399, 2004 N.Y. Slip Op. 01 143
(Cite as: 2 N.Y.3d 383, 811 N.E.2d 1053, 779 N.y.S.2d 399)

There is no litmus paper test for determining
when the probative value of the evidence outweighs
its potential for prejudice.

\

***402 *386 **1056 Kevin M. Doyle, Capital De-
fender, Albany (Barry J. Fisher, Beverly Van Ness
and Andrew C. Shear of counsel), for appellant.

*390 Howard R. Relin, District Attorney, Rochester
(Wendy Evans Lehmann and Arthur G. Weinstein
of counsel), for respondent.

*392 Eliot Spitzer, Attorney General, New York
City (Luke Martland, Peter B, Pope, Daniel Smir-
lock and Robin A. Forshaw of counsel), in his stat-
utory capacity under Executive Law § 71.

*393 Bennett L. Gcrshtnan, White Plains, amicus
curiae.

OPINION OF THE COURT

KAYE, Chief Judge.

Defendant's case, here on direct appeal from a
jury verdict of guilt of first degree murder and a
jury sentence of death, has a complex history that
we know well (see People v. Mateo, 93 N.Y,2d
327, 690 N.Y.S.2d 527, 712 N.E.2d 692 (1999];
Matter of Retin v. Cornell, 92 N.Y.2d 613, 684
N.Y.S.2d 177, 706 N.E.2d 1201 [1998] ). Implic-
ated in four murders and other violent crimes in
Rochester, on December 19, 1996, defendant was
charged in a 22-count indictment with, among other
things, three ***403 **1057 counts of first degree
murder. Count 10 of the indictment, contested
in this *394 appeal, alleged that on or about
November 2, 1996, in the course of and in further-
ance of first degree kidnapping, defendant inten-
tionally caused the death of Juan Rodriguez-Mat os,
or, intending Matos' death, commanded another-his
wife, Monica Szlekovics-to kill him (Penal Law §
125.27[I][a][vii] ). In either circumstance, the
cause of death was alleged to be a gunshot wound.

FN1. On January 17, 1997, the People filed
notice of their intent to seek the death pen-
alty pursuant to CPL 250.40(2).

Counts 1 1 and 12 of the indictment charged de-
fendant with first degree murder on a serial killer
theory that he acted “in a similar fashion” when,
within a 24-month period, he intentionally
murdered four individuals, including Matos. On de-
fendant's motion, the trial judge dismissed those
counts ( 175 Misc.2d 192, 664 N.Y.S.2d 981
[Monroe County Ct. 1997, Connell, J.) ), and the
Appellate Division affirmed ( 249 A.D.2d 894, 672
N.Y,S.2d 594 [4th Dept. 1998J ). We affirmed, con-
cluding that the evidence presented to the grand
jury was insufficient to establish that the killings at
issue were “committed in a similar fashion” under
Penal Law § 1 25.27(1 )(a)(xi) (People v. Mateo, 93
N.Y.2d 327, 690 N.Y.S.2d 527, 712 N.E,2d 692
[1999J ).

Prior to trial, relying on United States v. Jack-
son, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138
[1968], defendant challenged the plea provisions of
New York's recently enacted death penalty statute
CL. 1995, ch. 1). He argued that those provisions
Z created a two-tiered system of punishment for
the same offense, because only those who went to
trial faced the death penalty while those who
waived a jury trial and pleaded guilty did not. This
scheme, lie argued, impermissibly burdened his
Fifth and Sixth Amendment trial rights. The trial
judge, adhering to Jackson , held the plea provisions
unconstitutional, but the Appellate Division sub-
sequently declared them constitutional ( Matter of
Retin v. Connell, 251 A.D.2d 1041, 674 N.Y.S.2d
192 [4th Dept. 1998] ). Defendant thereafter went
to trial, while an appeal of the Appellate Division
ruling was pending in this Court. Ultimately, bound
by Jackson, we reversed, struck the plea provisions
as unconstitutional and, in a consolidated appeal,
severed them from the statute (Matter of Hynes v.
Tomei; Matter ofRelin v. Connell, 92 N.Y.2d 613,
684 N.Y.S.2d 177, 706 N.E.2d 1201 [1998] ).

FN2. CPL 220.1 0(5 )(e); 220,30(3)(b)(vii).

I.

The facts of defendant's ease, elicited at trial,
are no less complicated than its legal history. The

© 201 1 Thomson Reuters. No Claim to Grig. US Gov. Works.

1214

811 N,E.2d 1053 Page 9

2 N Y, 3d 383, 8 1 1 HE.2d 1053, 779 NY.S.2d 399, 2004 N.Y. Slip Op. 01143
(Cite as: 2 N,Y,3d 383, 811 N,E.2<1 1053, 779 N.Y.S.2d 399)

main participants in the events of October 8
through November 6, 1996 were defendant (then
age 27), his wife (Monica, 20), his estranged girl-
friend *395 {Janette Sanchez, 25) and his brother
(Victor Cordero, 16). Forty-nine witnesses, many of
them civilians who had crossed paths with defend-
ant, testified for the People. The defense called one
witness, to testify regarding a bullet wound in de-
fendant’s leg.

Though married to Monica, defendant had been
living with Janette since November of 1995 in what
was, to say the least, an abusive relationship.
Janette told the jury that soon after she and her
three young children moved in with defendant, he
began terrorizing her: he hit her in the face, beat her
in front of her children, threatened to stab her, and
more than once aimed a gun at her and threatened
to pull the trigger. At one point, he shot a ***404
**1058 round into the floor of their bedroom in
front of her.

As Janette testified, on October 8, 1996, in a fit
of rage over a busy telephone line, defendant hit
her, and then began hitting her five-year-old daugh-
ter with a belt Defendant locked them in the house,
and left. Janette and her daughter escaped through a
bedroom window. Janette then sought shelter at Al-
ternatives for Battered Women, and remained there
with her children. Three days later, on October
11th, defendant and Monica, in pursuit of Janette,
showed up at 966 Avenue D, the home of Maria
Sanchez (Janette's sister), Jose Roman (Maria's
boyfriend) and Maria’s four-year-old daughter. Jose
explained to the jury that he opened the door and
defendant pointed a gun al his forehead. Defendant
handcuffed him behind his back, put the gun to the
back of his head and told him to He down. For more
than three hours, defendant and Monica held the
family hostage while defendant ordered Maria to
keep phoning Janette, Finally, Maria reached her
and after defendant spoke to her, he and Monica
left.

Throughout October, defendant persisted in his
efforts to find Janette. He sent Monica to foe shelter

to give Janette his pager number so that she could
call him. On October 16th, while Janette was at the
Department of Social Services, defendant and Mon-
ica appeared, and defendant coaxed Janette into go-
ing to his apartment, without Monica. Soon after,
Monica appeared at the door with a gun. She left,
and defendant told Janette that he wanted to kill
himself. Instead, he pointed the gun at Janette's
chest and said he would kill her because he could
not allow her to be with anyone else. Janette later
managed to return to the shelter. Two days later,
defendant and Monica again accosted Janette on the
street. When she ran to a nearby office, defendant
followed her inside but security guards called *396
the police. Between October 8th and October 24th,
defendant kept calling and leaving messages for
Janette at the shelter. On October 24th, fearful that
defendant would harm Maria, Janette went back to
defendant for six days. On October 29th, a social
worker from Child Protective Services helped
Janette and the children move to another shelter. No
longer reachable at Alternatives for Battered Wo-
men, it seemed that Janette had disappeared.

As defendant later conceded to police, his at-
tack on the child had ended his relationship with
Janette. He admitted searching the city for her, and
acknowledged that he would hurt anyone who got
in his way. One unfortunate victim was Juan
Rodriguez-Matos, age 20. On or about November 2,
1996, defendant was driving around the east side of
Rochester with Monica and Victor, still looking for
Janette. Defendant spotted Matos on the street, and
remembered that he and Janette had a friend in
common, Glyselle, who might have information
about Janette. Defendant ordered Monica, who was
driving, to circle the block so he could confront
Matos. He then directed her to stop, got out of the
car and approached Matos, demanding to know
Glyselle's address. When Matos refused to answer,
defendant forced him into the car at gunpoint and
they drove to defendant's house. There, defendant
handcuffed Matos, brought him into the bathroom
and questioned him. Matos finally gave defendant
an address, but by that time defendant had already

€> 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1215

811 N.E.2d 1053 Page 10

2 N.Y.3d 383, 81 1 N.E,2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01 143
(Cite as: 2 N.Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S,2d 399)

decided to take him to the basement and execute
him. Defendant told police that he made this de-
cision and Monica and Victor were following his
orders-Monica and Victor did what he told them to
do.™ 3

FN3. During an eight-hour interrogation
beginning at 5:45 P.M. on November 6,
1996, defendant made a lengthy confession
to the Matos murder, three other homicides
and the Avenue D incidents. Those admis-
sions were subsequently reduced to written
statements, signed by defendant, about
each crime. Our later references to the
“confession” are to defendant’s statements
during the interrogation in theii entirety.

***405 **1059 Defendant admitted to the in-
vestigators that while in the basement, he put a dark
handkerchief over Matos' eyes, and then “shot the
dude in the left side of his head as he stood there.”
Matos fell on the floor, but was still alive, so de-
fendant put a plastic bag over his head. He died
some time later. In the middle of the night, defend-
ant, Monica and Victor wrapped the body in a
blanket and some curtains and left it in an alley
near where defendant used to work. A subsequent
autopsy of Matos* *397 body revealed that, al-
though he aspirated gastric contents into his lungs,
the cause of death was the gunshot wound to the
head. Defendant later told police during questioning
that he had handed the gun to Monica and that, in
actuality, it was she who pulled the trigger and he
was “surprised.” For the most part, he insisted that
he had fired the fatal shot, but he alternated back
and forth. In a third version, defendant claimed that
even though Monica had pulled the trigger, he was
a “king” and would take the blame because he
wanted the death penalty and could not “do a hun-
dred years in jail.” When police typed his written
statement, defendant claimed to have pulled the
trigger himself.

On November 6th, defendant, Monica and Vic-
tor carried out a second home invasion at 966 Av-
enue D. On that day, they went back to Maria and

Jose’s apartment house, but hid in the basement.
Defendant still wanted to find Janette, and told
Monica and Victor that Janette had filed a police
complaint against him. Defendant later explained,
“[tjhat was a lie and I was using them to help me
get my girl back,” After waiting about three hours,
defendant said “let's go upstairs.” Defendant told
Monica to knock on the first floor apartment door
(Maria lived on the second floor); when the occu-
pant-Willie McWilliams-opened the door, defend-
ant put a gun to his face.

McWilliams testified that defendant hit him on
the left side of his head with the gun, and told him
to “get on the floor.” A stranger to defendant and
his objectives, McWilliams dropped to his knees
and Victor handcuffed him. Asked who else was in
the house, first McWilliams said “nobody,” but
then said that his girlfriend and son were sleeping.
Defendant checked the other room, grabbed a knife,
came back, and said, “I never taken out a little kid
before.” Victor said, “we got to take them all out.”
McWilliams yelled out to his girlfriend to run. De-
fendant stepped on McWilliams’ back and cut him
across the throat. When McWilliams reared up, de-
fendant fell backwards, began shooting and struck
him in the shoulder and back. One of McWilliams’
handcuffs came loose and he hit defendant in the
face. Defendant fell again, dropping his gun, and
apparently was shot in the leg during the fray. De-
fendant and Victor took off, leaving Monica be-
hind. McWilliams held her down while his girl-
friend, who escaped to a neighbor's house, called
911. After the police arrested Monica at the scene,
she provided information leading to the arrest of
defendant and Victor. They were apprehended later
that day in a car with defendant's mother, another
brother and a cousin.

*398 Now, following a jury trial, defendant
stands convicted of first degree murder and other
charges. After a penalty proceeding** *496
**1060 in which he presented mitigating evidence,
the jury sentenced defendant to death.

FN4. On November 12, 1998, the People

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1216

811 N.E.2d 1053 Page li

2KY.3d383, 81 1 N.E.2d 1053, 779N.Y.S.2d 399,2004 N.Y. Slip Op, 01143-
(Cite as; 2 N,Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S.Zd 399)

filed an amended trial indictment that
eliminated the counts pertaining to the
three other murders. Count 10 of the ori-
ginal indictment was renumbered count 5
for trial. In addition, defendant was in-
dicted on three counts of second degree
kidnapping for the home invasion on Octo-
ber 11, 1996 (counts 1-3). He was charged
with second degree felony murder for the
killing of Matos (count 6) and first degree
kidnapping for the abduction of Matos
(count 7). In connection with the home in-
vasion on November 6, 1996, he was in-
dicted on attempted first degree murder in
the course of and in furtherance of a burg-
lary (count 8), kidnapping in the second
degree (count 9), first degree burglary
(count 10) and first degree assault (count
11). He also faced two counts of third de-
gree criminal possession of a weapon for
possessing firearms on October 11, 1996
and November 6, 1996 (counts 4, 12). The
jury found defendant guilty on all 12
counts.

Court's order should be dismissed because
the order is not directly appealable to this
Court under CPL 450.70.

Defendant also contends that his right to due
process was violated by the prosecutor, on the
ground that inconsistent factual theories were
presented at his and Monica's separate trials. We
disagree, and determine that the prosecutor's ac-
tions did not breach defendant's right to a fair trial.
Defendant claims that the jury verdict of guilt of
first degree felony murder is against the weight of
the evidence. We disagree, and in our review of the
facts conclude that the weight of the evidence com-
ports with the jury determination that defendant
kidnapped Matos, and in the course of and in fur-
therance of that crime, either intentionally shot and
killed him or commanded his wife end cohort,
Monica, to do so.

FN6, We note (hat defendant raises not a
single challenge to the trial court's rulings
related to the two-month jury selection
process.

Defendant's mandatory appeal, raising 22 is-
sues, was noticed February II, 1999, and conies to
us directly from the trial court pursuant to our
unique jurisdiction in death penalty cases (N.Y.
Const., art. VI, § 3[bJ; CPI. 450.70 [I] ). FN3 Do-
fend ant argues that Matter of Hynes v. Tontei, 92
N.Y,2d 613, 684 N.Y.S.2d 177, 706 N.E.2d 1201
[1998] and People v. Harris, 98 N.Y. 2d 452, 749
N.Y.S.2d 766, 779 N.E.2d 705 [2002] require over-
turning his death sentence, because he went to trial
under what we have held to be an unconstitutional
two-tiered penalty scheme. We agree, and conclude
that the death sentence must be set aside.

FN5. Defendant also filed an amended no-
tice of appeal dated April 13, 1999, which
sought to appeal from the judgment and, in
addition, from County Court's March 11,
1999 order denying his renewed CPL
330.30 motion. The appeal from County

*399 Finally, defendant maintains that certain
evidentiary errors, including the admission of his
statements about three other murders, mandate the
reversal of his conviction. We disagree. Defendant's
trial strategy opened the door to the admission of
his voluntary statements, to rebut the assertions that
he gave false statements to police exaggerating his
role in the Matos murder in order to exculpate his
wife.

II.

[1] Defendant contends that an Appellate Divi-
sion declaration made prior to his trial-holding the
plea provisions of New York's death penalty statute
constitutional-subjected him to an unconstitutional
penalty scheme, and that our subsequent decisions
in Matter of Hynes v. Tomei and People v. Harris
mandate that we set aside his death sentence. In
Hynes, we struck the plea provisions as unconstitu-
tional and severed them from the statute, on the
ground that they created a two-tiered punishment

© 201 1 Thomson Reuters, No Claim to Orig. US Gov. Works,

1217

8llN.E.2d 1053 Page 12

2 N.Y.3d 383, 81 1 N.E,2d 1053, 779 N.Y.S.2d 399, 2004 N,Y. Slip Op. 01 143
(Cite as: 2 N.YJd 383, 811 N,E.2d 1053, 779 N.Y.S.2d 399)

scheme that burdened ***407 **1061 the rights of
defendants who went to trial (92 N.Y.2d 613, 684
N.Y.S.2d 177, 706 N.E.2d 1201 [1998] ). In Harris,
we set aside the death sentence of a defendant who
went to trial while the plea provisions were in ef-
fect (98 N.Y.2d 452, 494-496, 749 N.Y.S.2d 766,
779 N.E.2d 705 [2002] ). We break no new ground
by applying these precedents, and dispose of de-
fendant’s Hynes claim first, striking defendant's
sentence of death.

The People and the Attorney General maintain
that in this cose, the trial court's order declaring the
plea provisions unconstitutional controlled the
course of the litigation, and that defendant actually
went to trial under a lawful statute. The question
before us is whether a subsequent declaration by
the Appellate Division, Fourth Department, that the
plea provisions were constitutional (251 A.D.2d
1041, 674 N.Y.S.2d 192 [1998] ), rendered those
provisions operative in his case. The People and the
Attorney General concede that if the plea provi-
sions were in effect during defendant's case, the
death sentence must be vacated.

A brief procedural history is required to frame
the issue. Defendant was indicted on first degree
murder and other charges on December 19, 1996,
and the prosecution filed its notice of intent to seek
the death penalty pursuant to CPL 250.40(2) on
January 17, 1997. On April 24, 1997, defendant
moved to strike the death notice and the plea provi-
sions of New York's death penalty statute as uncon-
stitutional, relying on United States v. Jackson, 390
U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 [1968]. In
Jackson, the United States Supreme Court invalid-
ated the death penalty provision of the *4 Of) Federal
Kidnaping Act (18 USC § 1201 [a] ) because, in rel-
evant part, by encouraging jury waivers to avoid the
death penalty, the provision impermissibly
burdened defendants' Fifth and Sixth Amendment
rights. Retying on Jackson, the trial court, on Au-
gust 25, 1997, granted defendant's motion to the ex-
tent that it declared the plea provisions unconstitu-
tional (175 MiBc.2d 192, 664 N.Y.S.2d 981 [1997]

)•

The People then commenced a CPLR article 78
petition in the Appellate Division seeking a writ of
prohibition to bar both the trial judge and defendant
from enforcing the order declaring the plea provi-
sions unconstitutional. On June 10, 1998, the
Fourth Department converted the article 78 pro-
ceeding to a declaratory judgment action and held
the plea provisions constitutional (251 A.D.2d
1041, 674 N.Y,S.2d 192 [1998] ). Jury selection
commenced on September 1, 1998 and the jury was
sworn on November 9, 1998. On December 3,
1998, the jury found defendant guilty of first degree
murder and other charges, and on December 16,

1998, sentenced him to death.

Six days later, on December 22, 1998, this
Court reversed the order of the Fourth Department,
as well as a comparable order of the Second De-
partment, and struck the plea provisions as uncon-
stitutional under authority of Jackson, 92 N.Y.2d
613, 684 N.Y.S.2d 177, 706 N.E.2d 1201 [1998].
Shortly thereafter, defendant moved to set aside his
death sentence, relying on Hynes, On January 15,

1999, the trial judge summarily denied the motion
and ordered the death sentence to be carried out
based on the jury’s determination. Defendant now
contends that the Fourth Department ruling uphold-
ing the plea provisions was in effect in his case
when he went to trial and therefore the trial was
conducted under a Jackson -\ iolative statute. We
agree.

To be sure, defendant received a favorable pre-
trial ruling from the trial court striking the plea pro-
visions from the statute. By the time that defend-
ant's trial ***408 **1062 commenced, however, the
Appellate Division had declared the plea provisions
constitutional, in an action by this District Attorney
against this trial judge and this defendant. That rul-
ing was binding in the Fourth Department (see e,g.
Duffy v. Horton Mem. Hasp., 66 N.Y.2d 473, 475,
497 N.Y.S.2d 890, 488 N.E.2d 820 [1985] ). Based
on that binding precedent, we conclude that defend-
ant could have sought to avoid exposure to a death

© 201 1 Thomson Reuters. No Claim to Orig. US Oov. Works.

1218

811 N.E,2d 1053 Page 13

2 N,Y.3d 383, 81 1 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01 143
(Cite as: 2 N,Y.3d 383, 811 NJK.2d 1053, 779 N.Y.S.2d 399)

sentence only by waiving his right to a jury trial
and pleading guilty.

Matter of Morgenthau v. Erlbaum, 59 N.Y.2d
143, 464 N.Y.S.2d 392, 451 N.E.2d 150 {1983]
does not mandate a different result in this case. We
held in Erlbaum *401 that “a declaratory judgment
attacking a criminal court's interlocutory ruling may
be granted when the controversy is over the validity
of a statute, ... and there is no immediate attempt to
prevent the criminal court from proceeding on the
course which it has charted by its ruling” {id. at
151-152, 464 N.Y.S,2d 392, 451 N.E.2d 150). Erl-
baum, moreover, contemplates that an individual
defendant will not be a party to the declaratory
judgment action. (Here, defendant was a party.)
The Appellate Division order-determining the
validity of the statute-did not reverse the trial
court's order, or immediately prevent the trial court
from proceeding on its course. At the time the Ap-
pellate Division ruled, the case was several months
from being tried. There was no ensuing delay of tri-
al. Indeed, defendant went to trial while the Appel-
late Division ruling, reinstating the plea provisions,
was simultaneously challenged in this Court. Thus,
the “concern over obstructing the speedy resolution
Of cases" {id. at 152, 464 N.Y.S.2d 392, 451 N.E.2d
150) did not arise. In these circumstances, Erl-
baum’s policy considerations-protecting criminal
trials from interference, or even undoing, by inter-
locutory appeals-were not implicated.

Exactly the situation Jackson held untenable,
however, occurred here. Like any other capital de-
fendant in the Fourth Department, had defendant
sought to waive his right to a jury trial and plead
guilty- with the appellate court's ruling in hand-it
was highly improbable that the trial judge would
have ignored the order of the Appellate Division.
Thus, the fortuitous timing of defendant's trial,
sandwiched in between the Appellate Division rul-
ing and this Court's decision striking the plea provi-
sions, contributed to a unique situation in which de-
fendant's Fifth and Sixth Amendment trial rights
were burdened and he was tried under an unconsti-

tutional two-tiered penalty scheme. The sentence of
death therefore must be set aside. We turn next to
defendant’s challenges to the verdict of guilt.

HI.

Defendant contends that the prosecutor violated
due process by positing, in his trial, a theory of first
degree murder factually inconsistent from that ar-
gued at Monica’s trial. He also maintains that the
trial court erroneously instructed the jury that it
could find defendant guilty of first degree murder
whether he shot Matos or commanded the killing,
and that the jury verdict on that count is against the
weight of the evidence,

A. The Prosecution's Theories

[2] Monica was prosecuted separately-about a
year before defendant’s trial-on the theory that she
was guilty, as the *402 shooter, of intentional first
degree felony murder (Penal Law § 125.27[l]faj
[vii] ) in the course of and in furtherance of first de-
gree kidnapping, in a noncapital trial. The jury ac-
quitted her of that count but convicted her of
second degree felony murder** *409 **1063 and
first degree kidnapping. At his trial, defendant
sought to preclude the prosecution from arguing in
his case that he was the shooter, on the ground that
the People previously dismissed that theory in
Monica’s case.

The trial court rejected defendant's claim, de-
termining that at defendant's trial, the People were
free to argue alternatively that either defendant or
Monica-commanded by defendant-pulled the trig-
ger. The court concluded that “the People are
merely intending to argue reasonable views of the
evidence that could be drawn from the testimony
and physical evidence” ( 177 Misc.2d 817, 818, 676
N.Y.S.2d 908 [Monroe County Ct. 1998, Connell,
J.] ).

[3] Defendant claims that by advancing pur-
portedly inconsistent theories, the People corrupted
the truth-finding function of the trial. It is settled
that a prosecutor may not knowingly present ad-
missible but false information to a jury {People v.

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1219

«llN.&2d 1053 Page 14

2N.Y,3d383,8M N,E,2d 1 053, 779 N.Y^.2d 399, 2004 NX Slip Op, 011 43
(Cite as: 2 N.Y,3d 383, 81 1 NJUd 1053, 779 N.Y,S,2d 399)

PefchuL 62 N,Y,2d 97,1 05, 476 N.Y.S,2d 79, 464
N.E-2d 447 [1984] ), Of course, in the circum-
stances of this case, where defendant and Monica
implicated not only themselves but also each other,
the People could not know who the shooter was-
only defendant and Monica knew.

Defendant contends that at the separate trials,
the prosecution presented diametrically opposed
versions of his role in the shooting. To be sure, at
Monica's trial for first degree felony murder, the
prosecutor argued that Monica shot Matos. But at
defendant's trial, the prosecutor presented that very
same proposition, again arguing that Monica inten-
tionally shot him, albeit under defendant's orders.
Defendant was not "resculpted” from a mere side-
liner to a main participant (of. United States v.
Salerno 4 937 F.2d 797, 812 [2d Cir.!99f], revd on
other grounds 505 U,S. 317, 112 S.Ct. 2503, 120
L.Ed.2d 25 5 [1992] ). In both trials, defendant was
portrayed as the "driving force" behind the crime.
Additionally, the People maintained that, based on
defendant's own written statement, it was also reas-
onable to conclude that he was the one who pulled
the trigger. Thus, defendant's jury considered the
same argument that the prosecutor presented at
Monica's trial, and also considered a theory suppor-
ted by defendant's own words.

in assessing this claim, we find Nguyen v.
Lindsey, 232 F.3d 1236 [9th Cir.2000] persuasive.
There, an innocent bystander was killed in the
crossfire of a shootout between two rival gangs;
*403 two combatants were charged with murder
and separately tried. At the trial of defendant
Phung, the prosecutor presented evidence that
Phung shot first. At the trial of defendant Nguyen,
the prosecutor introduced Nguyen's own statement
to police that a cohort in his car, Cholo, had fired
first- The Ninth Circuit held that the prosecutor did
not pursue fundamentally inconsistent theories in
violation of due process, even though different
evidence was presented at each trial {id. at 1241).
Although the prosecutor made divergent arguments
at each trial as to who fired the first shot, the court

concluded that these arguments were consistent
with the evidence actually adduced at each trial (id.
at 1240).

Here, as in Nguyen, the evidence against Mon-
ica at her trial was her own statement that she killed
Matos after defendant gave her the gun and
whispered in her ear to shoot hiai in the head.^ 7
The evidence at defendant's trial was his self-
inctitn mating admissions that he intended to ex-
ecute the victim, and either shot the victim or com-
manded Monica to do so.

FN7. Monica’s jucy also heard that she had

previously blamed defendant for shooting

Matos.

***410 **1064 Nguyen also distinguished
Thompson v, Calderon (120 F.3d 1045 [9th
Cir.1997) [en banc] [plurality op.], revd on other
grounds 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d
728 [1998] ), relied on by defendant. In Thompson
, separate trials were conducted of two suspects in
the rape and murder of Ginger Fleischli. Testimony
by jailhouse informants at a preliminary hearing re-
vealed that defendant Leiteh wanted Fleischli dead
because she was interfering with his attempts to re-
concile with his ex-wife (120 F.3d at 1055), On the
night of the murder, defendant Thompson allegedly
had consensual sex with Fleischli. Afterward,
Leiteh arrived and he and Thompson killed her.

At Thompson’s trial, the prosecution presented
other witnesses who testified that Thompson had
confessed to raping and killing Fleischli before
Leiteh got home, and that he killed her to prevent
her from reporting the rape (id. at 1056), Thompson
was convicted of first degree murder and sentenced
to death. Then, at Leitch's trial, the prosecutor
called mostly defense witnesses from Thompson’s
trial, who testified about Leitch’s motive for killing
Fleischli, his threats against her and his violent dis-
position. A plurality of the court concluded that in
Leitch’s trial, the prosecutor returned to his original
theory and discredited the very evidence he had
previously offered in *404 Thompson’s trial, so that

© 201 1 Thomson Reuters, No Claim to Orig. US Gov. Works.

1220

8! I NE.2d 1053 Page 15

2 N.Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01 143
(Cite as: 2 N.Y, 3d 383, 811 N.E.2d J 053, 779 N.Y. S. 2d 399)

Thompson, rather than Leitch, suffered from the
due process deprivation {id at 1059). In Nguyen, by
contrast, the court found it compelling that both de-
fendants could be found guilty of the same crime
because of its nature (232 F.3d at 1240).

The circumstances of defendant’s case are
closer to Nguyen than Thompson. The prosecutor
never discredited the central evidence he previously
offered to convict Monica, but instead used that
evidence to prove that defendant commanded her to
shoot Matos. Thus, as the People sought to prove,
both defendants could have been guilty of first de-
gree murder. The argument that defendant was the
shooter was also properly adduced at trial, based on
his admissions. In these circumstances, the People
should not have to choose one defendant over the
other to prosecute as the shooter.

Defendant also argues that at Monica's trial,
she was portrayed by the People as acting with free
will, whereas at defendant's trial, the evidence
showed that she was abused and acted at defend-
ant's command. These positions are not inherently
inconsistent. At Monica's trial, the People were
countering her duress defense, and sought to show
that she was capable of freely committing the
murder. The prosecution acknowledged that Mon-
ica was abused, but argued that the abuse did not
mean she could establish duress: “Whal was the ab-
use? What did it consist of? ... [W}hat effect does it
have on this case? ... [YJouTe going to hear that
Angel Mateo was a bad man, and I anticipate you
are going to hear that he was the driving force here,
but I also anticipate you are going to hear that Mon-
ica Szlekovics was involved.” At defendant's trial,
by contrast, duress was not in the case. The People
were entitled to show that, fearful or not, Monica
could have willingly followed defendant's com-
mand,

B, The Command or Actual Killer Instruction

Defendant claims that it was error for the trial
court to instruct the jury that it could convict de-
fendant of first degree murder either as a command-
er or shooter. Penal Law § 1 25 .27(1 Xa) (vii), the

"felony murder” provision of the first degree
murder statute (see ***41 \**lM$People v. Harris,
98 N.Y.2d 452, 475-477, 749 N.Y.S.2d 766, 779
N.E.2d 705 [2002] ), states that a person is guilty of
first degree murder when, with intent to cause the
death of another person, he causes the death of that
person or a third person, and:

“the victim was killed while the defendant was in
*405 the course of committing or attempting to
commit and in furtherance of ... kidnapping in the
first degree ...; provided however, the victim is
not a participant ... and, provided further that, un-
less the defendant's criminal liability under this
subparagraph is based upon the defendant having
commanded another person to cause the death of
the victim or intended victim pursuant to section
20.00 of this chapter, this subparagraph shall not
apply where the defendant's criminal liability is
based upon the conduct of another pursuant to
section 20.00 of this chapter.”

FN8. The first degree kidnapping statute,
Penal Law § 135.25(3), provides that a
person is guilty of that crime when he or
she abducts another person who dies dur-
ing the abduction or before being able to
return or to be relumed to safely.

In turn. Penal Law § 20.00, the accessorial li-
ability provision, provides that “[wjhen one person
engages in conduct which constitutes an offense,
another person is criminally liable for such conduct
when, acting with the mental culpability required
for the commission thereof, he solicits, requests,
commands, importunes, or intentionally aids such
person to engage in such conduct.”

[4] Based upon the plain language, it is clear
that the Legislature has set forth a single circum-
stance by which to impose accessorial liability for
first degree felony murder. An actor may be found
guilty as an accessory under Penal Law § 125.27
(IXa)(vii) only when the theory proved by the pro-
secution is that the defendant commanded the

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1221

8llKE,2d 1053 Page 16

2N,Y.3d 383, Si 1 N.F..2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01143
(Cite as ; 2 N.YJd 383, 81 1 N.E,2d 1053, 779 N.Y.S.2d 399)

killing {see People v. Couser, 94 N.Y.2d 631, 635,
709 N,Y.S,2d 155, 730 N.£.2d 953 [2000] {“(a) de-
fendant’s criminal responsibility for murder in the
first degree can be based upon the conduct of an-
other when that defendant ‘ commanded another
person to cause the death of the victim or intended
victim* ” (emphasis in original) ] )«

By comparison, the Legislature chose not to
limit accessorial liability for the other 12 subpara-
graphs of the first degree murder statute (see gener-
ally People v. Cahill, 2 N.Y.3d 14, 111 N.Y.S.2d
332, 809 ME, 2d 561 [2003] for a discussion of 13
aggravating factors of first degree murder statute).
It is only the felony murder aggravator that is so
limited Indeed, the Assembly Codes Committee
memorandum explains that the felony murder pro-
vision “excludes defendants whose criminal liabil-
ity under this subparagraph is based upon the con-
duct of another person, unless the defendant com-
manded *406 another person to cause the death of
the victim or intended victim” (Mem. of Assembly
Codes Comm., Bill Jacket, L. 1995* ch. 1, at 22
[emphasis added] ).

FN9. See Donnino, Practice Commentary,

McKinney’s Cons. Laws of N.Y., Book 39,

Penal Law § 125.27^1390.

[5] The legislative history supports the conclu-
sion that, while the Legislature limited accessorial
liability for fiTst degree felony murder to
“commanding],” it did nothing to upset the settled
principle that **[t]here is no distinction between li-
ability as a principal and criminal culpability as an
accessory” (People v Duncan, 46 N-Y.2d 74,
79-80, 4.12 N.Y.S.2d 833, 385 N.E.2d 572 [1978] ).
When it enacted the statute, the Legislature was
surely aware of our decisions interpreting the ac-
cessorial* **412 **1066 liability statute (see gener-
ally People v. Robinson, 95 N.Y.2d 179, 183-184,
71 1 N.Y.S.2d 148, 733 N.E.2d 220 (2000] ). If the
Legislature had wanted to set forth “command” as a
separate element of the first degree feioivy murder
offense, moreover, it would have done so.

FN10. Prior to trial, defendant moved to
dismiss the first degree murder count as
duplicitous because it charged him with the
killing as the shooter and as the command-
er of another person. While defendant no
longer presses his claim of duplicitous
counts on appeal, ihe trial court's reasoning
is persuasive on the issue before us:

“[t]he language ‘commanded another
person’ is not an additional element to
the offense of an intentional killing in
the course of and in furtherance of a
felony. Rather, under this statute, the
People may charge the defendant as a
principal, or in a limited situation* as an
accomplice” (175 Misc,2d at 207, 664
N.Y.S.2d 981).

[6] The question here is whether due process
requires that the command theory be considered by
the jury apart from the actual killer theory, and that
the jury be unanimous on one theory or the other,
even though the Legislature expressly intended that
the two coexist in the same subparagraph of the
statute. 1 We conclude it does not.

FNll, Before the case was submitted to
the jury, defendant requested that the court
instruct the jury that, to find him guilty* it
had to be unanimous as to whether he shot
and killed Matos, or commanded his wife
to do so. The trial court rejected defend-
ant's request, and instructed the juiy that:

“Your verdict* as I have mentioned be-
fore on each of these charges, has to be
unanimous. That means all twelve have
to agree upon a verdict. All twelve of
you[ ] deliberating on a case do not have
to agree that the Defendant was the
shooter nor do all twelve deliberating on
the case have to find that the Defendant
was the commander. It is sufficient that
all twelve find the Defendant was either
the shooter or the commander under

© 2011 Thomson Reuters. No Claim to Orig, US Gov. Works.

1222

811 N.E.2d 1053 Page 17

2 N.Y.3d 383, 81 1 N.E_2d 1053, 779 N.Y.S.2d 399, 2004 N.Y, Slip Op. 01143
(Cite ns: 2 N,Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S.20 399)

Murder in the First Degree.”

The trial court's instructions comported with
due process. In Schad v. Arizona, 501 U.S. 624, 1 1 1
S.Ct. 2491, 115 L.Ed.2d 555 [1991], the United
States *407 Supreme Court analyzed an Arizona
statute that defined first degree murder as, among
other tilings, premeditated murder or murder com-
mitted during a felony. Justice Souter, writing for a
plurality, observed that there is a “point at which
differences between means become so important
that they may not reasonably be viewed as alternat-
ives to a common end, but must be treated as differ-
entiating what the Constitution requires to be
treated as separate offenses” (501 U.S. at 633, 1 1 1
S.Ct. 2491).

The Schad plurality adopted a case-by-case ap-
proach of analyzing the problem, while deferring to
the states: “(i]f a State's courts have determined that
certain statutory alternatives are mere means of
committing a single offense, rather than independ-
ent elements of the crime, we simply are not at
liberty to ignore that determination and conclude
that the alternatives are, in fact, independent ele-
ments under state law” (id at 636, 111 S.Ct. 2491).
The plurality observed that “[w]here a State's par-
ticular way of defining a crime has a long history,
or is in widespread use, it is unlikely that a defend-
ant will be able to demonstrate that the State has ...
defined as a single crime multiple offenses that are
inherently separate” (id at 640, 1 1 1 S.Ct. 2491).

Although New York’s current first degree
murder statute is recently enacted, the term
"command,” under our law, has its roots in the
1907 Penal Code, which defined a “principal” as
"[a] person concerned in the commission of a crime
whether he directly commits the act constituting the
offense or aids and abets in its commission, and
whether present or absent, and a person who dir-
ectly or indirectly** *41 3 **1067 counsels, com-
mands, induces or procures another to commit a
crime” (. People v. Farmer, 196 N.Y. 65, 76, 89 N.E,
462 [1909] [Bartlett, J., dissenting, quoting Penal
Code of 1907 § 29] [emphasis added]; see also

Comer . 94 N.Y.2d at 637, 709 N.Y.S.2d 155, 730
FNI?

N.E.2d 953). Almost 100 years ago, then, a
commander was not only just as culpable as a per-
son who directly committed an offense, but also
was indeed a principal.

FNI 2. We reject as meritless defendant’s
contention that the trial court erred in in-
structing the jury on the definition of
"command.” Indeed, in Comer , we cited
with approval the trial court's definition in
Mateo (94 N.Y.2d at 636-637, 709
N.Y.S.2d 155, 730 N.E.2ci 953).

In a related vein, Schad is instructive in its ob-
servation that if two possibilities for proving an ele-
ment exist, an appropriate inquiry is whether a mor-
al equivalence between the two could reasonably be
found (501 U.S. at 644, 1 1 1 S.Ct. 2491). If so, it is
enough to rule out the argument that any hypothet-
ical “moral disparity bars treating them as alternat-
ive means to satisfy” the element of a *408 single
offense (id.). Wc have a long history of treating ac-
tual killers and commanders as moral equivalents (
see Farmer. 196 N.Y. at 70-71, 89 N.E. 462). PN13

FNI 3. Schad itself cited People v. Sulli-
van, 173 N.Y. 122, 65 N.E. 989 [1903] as
the leading case for the proposition that the
jury need not necessarily concur in a single
view of the transaction, in order to reach a
verdict (501 U.S. at 641, 111 S.Ct. 2491).
There, a single crime was charged in the
indictment, first degree murder, under
then-existing Penal Code § 183. As the
Court explained, u [i]f the conclusion may
be justified upon either of two interpreta-
tions of the evidence, the verdict cannot be
impeached by showing that a part of the
jury proceeded upon one interpretation and
part upon the other” ( 173 N.Y. at 127, 65
N.E, 989, quoting Murray v. Mew York Life
Ins. Co., 96 N.Y. 614, 622 [U84] ).

Defendant nevertheless contends that he could
have been guilty of only one of the two theories-

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1223

81 1 N.E.2d 1053 Page 18

2 N.Y„3d 383, 811 N.B,2d 1053, 779 N,Y.S.2d 399, 2004 N.Y, Slip Op. 01 143
(Cite as; 2 N.Y.Jd 383, 811 N,E,2d 1053, 779 N,Y.S.2d 399)

shooting or commanding-and therefore a different
res;dt should obtain. Indeed, he argues that the pro-
secutor must prove to the jury's satisfaction pre-
cisely what occurred as a matter of historical fact
This is so, he claims, for any issue that is critical to
the main dispute in the case.

[7] As we sift carefully through the evidence, it
becomes apparent that defendant makes much of
what is essentially a preliminary fact. “Plainly there
is no general requirement that the jury reach agree-
ment on the preliminary factual issues which under-
lie the verdict" {Sc had, 501 U.S. at 632, 1 1 1 S.Ct,
2491, quoting McKay v. North Carolina, 494 U.S.
433, 449, 1 10 S.Ct. 1227, 108 L.Ed.2d 369 f 1990J
[Blackmun, J., concurring] ). Defendant certainly
kidnapped the victim-that is undisputed He took on
the mental state required: it was his decision to ex-
ecute Matos. Thus, whether he personally pointed
the gun. at the victim's head and pulled the trigger,
or whether, handing the gun to Monica, he gave her
an order and stood near as she carried it out, the
two choices for the jury were not so different that
they amounted to any more than alternatives to a
common end. Indeed, Justice Souter wrote that in
analogous circumstances, *'[w]e have never sugges-
ted that in returning general verdicts ... the jurors
should he required to agree upon a single means of
commission, any more than the indictments were
required to specify one alone” (501 U.S. at 631,
111 S.Ct, 2491).

We have, more recently, had occasion to em-
ploy this principle in similar circumstances. For ex-
ample, in People v. Rivera, 84 N.Y.2d 766, 622
N.Y.S.2U 671, 646 N.E.2d 1098 [1995], the defend-
ant was indicted for second degree murder as a
principa!,.***414 **1068 Concluding there was no
bar to the People's assertion at trial that defendant
acted as an accomplice, we held that the elements
of the crime were the same, *409 whether the de-
fendant acted in either role (id at 771, 622
N,Y.S.2d 671, 646 N.E.2d 1098). The facts showed
that the victim was shot once and died from the
wound. Witnesses saw defendant and two cohorts.

all of whom had guns drawn, near the victim. The
victim looked at defendant and said, “[y]ou shot
me” before falling down (id at 768, 622 N.Y.S.2d
671, 646 N.E.2d J098). Thus, the People were en-
titled to prove that defendant intended the victim's
death, and caused the death either by shooting his
gun or by aiding the shooter. To convict, the People
bad to prove each element of the crime, and defend-
ant’s liability was the same whether he acted as
either a principal or an accessory (id. at 770-771,
622 N.Y.S.2d 671, 646 N,E.2d 1098).

Similarly, in People v. Russell, 91 N,Y.2d 280,
288-290, 670 N.Y.S.2d 166, 693 N.E.2d 193
[1998], we concluded that the prosecution was not
required to prove which of the defendants fired the
lone bullet that killed the victim, when the evidence
established that each defendant, embroiled in a gun
battle with the others, intentionally aided one an-
other in a mutual combat that caused the death of
an innocent bystander. Here, too, the prosecution
need not have shown which of the two perpetrators
actually fired the fatal shol. ^

FN14. In light of this conclusion, we also
reject defendant's contention that the jury
verdict was unreliable in that it did not en-
able him to know which theory to mitigate
at sentencing.

C. The Weight of the Evidence of First Degree
Felony Murder

[8] Defendant claims that bis conviction for
first degree felony murder based on either the
shooter or the commander theory was against the
weight of the evidence because the evidence
proved, at most, that he was an ordinary accomplice
and was guilty of second degree intentional murder
(see Penal Law § 125.25[i]; § 20.00).

[9] The standard of appellate review of the leg-
al sufficiency of the evidence in a criminal trial, of
course, is "whether there is any valid line of reason-
ing and permissible inferences which could lead a
rational person to the conclusion reached by the
jury on the basis of the evidence at trial” ( Cahill , 2

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1224

Si 1 N.E.2d 1053 Page 19

2 N.Y.Sd 383, 811 N.E,2d 1053, 779 N.Y.S,2d 399, 2004 N,Y, Slip Op. 01 143
(Cite as: 2 N.YJd 383, 811 N.E.2d 1053, 779 N,Y.S.2rf 399)

N.Y,3d at 57, 111 N.Y.S.2d 332, 809 N.E.2d 561,
quoting People v. Bleakiey, 69 N-Y.2d 490, 495,
515 N.Y.S,2d 761, 508 N.E.2d 672 [1987] ). View-
ing the evidence in a light most favorable to the
People, as we must (People v. Cabev, 85 N.Y.2d
417, 420, 626 N.Y.S.2d 20, 649 N.E.2<t 1164
[1995] ), we conclude that there is certainly a valid
line of reasoning by which a rational *410 person
could have reached the conclusion of the jury and
that defendant's uuilt was established beyond a
reasonable doubt.

FN15. Contrary to defendant's assertions,
the reasonable doubt charge here conveyed
the proper standard.

[10] In this capital case, in which a death sen-
tence has been imposed, moreover, wc are constitu-
tionally required to review the facts (N.Y. Const.,
art. VI, §§ 3, 5; People v. Davis, 43 N.Y.2d 17, 36,
400 N.Y.S.2d 735, 371 N.E.2d 456 [1977] ). Our
inquiiy here is distinct from our traditional appel-
late review for legal sufficiency.

[11) [12][13][14][15] We recently reiterated
that “weight of the evidence review recognizes that
‘[e]ven if all the elements and necessary findings
arc supported by some credible evidence, the court
must examine the ***415 **1069 evidence further’
” [Cahill, 2 N.Y.3d at 57, 777 N.Y.S.2d 332, 809
N.E.2d 561, quoting Bleakiey , 69 N.Y.2d at 495,
515 N.Y,S.2d 761, 508 N.E.2d 672). Thus, “[i]f
based on all the credible evidence a different find-
ing would not have been unreasonable, then the ap-
pellate court must, like the trier of fact below,
‘weigh the relative probative force of conflicting
testimony and the relative strength of conflicting
inferences that may be drawn from the testimony.’
If it appears that the trier of fact has failed to give
the evidence the weight it should be accorded, then
the appellate court may set aside the verdict” ( 69
N,Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672
[internal citations omitted], quoting People ex rel.
MacCracken v. Miller, 291 N.Y. 55, 62, 50 N.E.2d
542 [1943]; Cahill , 2 N.Y.3d at 58, 777 N.Y.S.2d
332, 809 N.E.2d 561), Of course, “[g]reat deference

is accorded to the fact-finder's opportunity to view
the witnesses, hear the testimony and observe de-
meanor” (69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508
N.E.2d 672). When “an appellate court performs
weight of the evidence review, it sits, in effect, as a
'thirteenth juror’ ” (Cahill, 2 N.Y.3d at 58, 777
N.Y.S.2d 332, 809 N.E.2d 561, quoting Tibbs v.
Florida, 457 US. 31, 42, 102 S.Ct. 2211, 72
L.Ed.2d 652 [1982] ). We must be sure that “the
evidence is of such weight and credibility as to con-
vince us that the jury was justified in finding the
defendant guilty beyond a reasonable doubt” (
Cahill, 2 N.Y.3d at 58, 111 N.Y,S.2d 332, 809
N.E.2d 561, quoting People v. Crum, 272 N.Y. 348,
350, 6 N.E.2d 51 [1936]).

With these standards in mind, we conclude that
the evidence amply supports the first degree murder
conviction. There is no question that defendant en-
gineered and carried out the armed kidnapping of
Matos, that defendant decided to kill him, hand-
cuffed him, led him down to the basement, and that
Matos died of an intentional gunshot wound to the
head. No matter which version of defendant's story
the jury credited, it was justified in finding that de-
fendant was squarely in charge of the kidnapping
and shooting of Matos.

*41 1 (i.) The Command Theory

Despite defendant's argument that there was no
direct evidence that he told Monica to kill Matos,
the circumstantial evidence strongly supports the
conclusion that he did. On the day of Matos'
murder, defendant was again looking for Janette,
with Monica and Victor under his sway. Defendant
ordered Monica to turn the car around lo confront
Matos, he directed her to stop the car and he forced
Matos into the car at gunpoint. It was defendant
who took Matos into the bathroom and handcufTed
him. By then, defendant had made a decision to
take “the kid” down to the basement to execute
him. Defendant told police that he made this de-
cision and Monica and Victor were following his
orders.

Defendant told Sheridan, “I had already made

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1225

811 N.E.2d 1053 Page 20

2 N.Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01 143
(Cite as: 2 N. V 3d 383, 81 1 N.E.2d 1053, 779 N.Y.S.2d 399)

up my mind that I was going to kill him,” Defend-
ant stated that he gave Monica the gun, and stood
not far from her as she pulled the trigger. Observing
that Matos was still alive, defendant placed a
plastic bag, over his head, further demonstrating his
intent. The only reasonable ***416 **1070

inference from these facts is that by word or deed,
when he handed Monica the gun, he authoritatively
directed her to pull the trigger (see Couser, 94
M,Y.2d at 637, 709 N.Y.S.2d 155, 730 N.E.2d 953).

FN 16, After the jury sent a note asking for
the medical examiner’s testimony on the
cause of death, defendant asked the court
to “instruct the jury that the indictment has
charged [defendant] with causing the death
by shooting or commanding another to
shoot the victim with a gun and that is the
only cause of death that has been alleged.”
On appeal, defendant contends that the
court was required to instruct the jury not
to consider a suffocation theory of murder.
This claim is not preserved, and in any
event, without merit. The evidence in the
case did not support the suffocation theory,
nor was it charged or argued by the prosec-
utor. The court’s main charge referred to
“shoot” or “shooting” no less than nine
times.

After the shooting, defendant remained in
charge. He explained to Sheridan that he set the
alarm for 2:30 A.M. so that, after “partying,” they
could get up and get rid of the body. He ordered
Monica and Victor to go downstairs and wrap the
body, ^ he told Victor to help them lift the body
into the car, he made Victor sit in the back of the
car with the corpse (because there was no room in
the front seat) and he instructed Monica to drive to
an alley near his old job to dispose of the body.
When confronted by police with the theory that
Monica was the shooter, defendant claimed surprise
that Monica shot Matos in *412 the head. Sheridan
later explained that defendant never said he was
surprised that Matos was killed. It was reasonable

to infer that defendant was surprised that Monica,
whom he scorned, carried out the order. He ac-
knowledged in his written statement that everything
she did was “out of fear of me and what I would
do.”

FN17. In his statements to police, defend-
ant described the materials used to wrap
the body, including curtains and a green
blanket. Investigators corroborated these
details when the body was found.

Throughout, defendant maintained his power
over the other participants. The jury could easily
have inferred that he gave an order to Monica to
shoot Matos. The jury gave the evidence its proper
weight and we will not disturb that determination.

(ii.) The Shooter 'Theory

Defendant’s written statement to police
provided the jury with solid evidence to conclude
that he pulled the trigger:

“I handcuffed him behind his back and put him
into the bathroom. Me and Monica were trying to
figure out what we were going to do with him. I
walked him down into the basement. 1 had
already made up my mind that I was going to kill
him. In the basement 1 put a dark handkerchief
over his eyes. I shot the dude in the left side of
his head as he stood there. The dude fell on the
floor. The dude wasn't dead so I put a plastic
garbage bag over his head. He was alive for about
2 1/2 hours. The dude just laid there on the floor
making sucking noises. After awhile 1 checked on
him and saw that he was dead.”

This was a forceful admission leading to the
conclusion that defendant shot Matos. True, de-
fendant appeared confused when police asked him
about the blindfold over Matos' eyes. Defendant
said there was “nothing over the kid's eyes.” Of
course, defendant admitted covering Matos' head
with a plastic bag after the shooting, and never re-
tracted that portion of his statement, so he must
have seen the blindfold, which was shot through

©2011 Thomson Reuters. No Claim to Orig. US Oov. Works.

1226

811 N.E.2d 1053 Page 21

2 N.Y.3d 383, 81 1 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01 143
(Cite as: 2 N.Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S.2 0399)

and bloodied- The jury may have inferred that he
had forgotten about it by the time police asked
about it.

We conclude the jury was justified in finding
beyond a reasonable doubt that defendant, having
decided to execute the victim, directed Monica to
shoot Matos or shot the victim himself, and in re-
jecting his claim that he was merely guilty of
second degree murder as an accomplice.

IV.

Defendant maintains that his confession was
involuntary and that the introduction, ***417
**1071 during re-cross-examination of a prosecu-
tion*413 witness, of part of it-statements about
three other murders- was reversible error. We hold
that the confession was voluntary and that, through
his trial strategy, defendant opened the door to ad-
mission of his statements on other homicides.

A, The Voluntariness of the Confession

[16] Defendant was a nested on the afternoon
of November 6, 1996 based on leads Monica gave
to police/ 5 He contends that his will was over-
borne by the investigators who questioned him, be-
cause they allegedly led him lo believe that he was
receiving a compelling benefit- lenient treatment for
family members-in exchange for his confession.
This claim is without merit.

FH18. We reject defendant's claim that in-
formation provided by an informant in a
search warrant application was unreliable.

Following a Huntley hearing, the court determ-
ined that:

“[Defendant was properly advised of his Mir-
anda warnings and made a knowing, voluntary
and intelligent waiver of those warnings before
speaking with the officers. During the ensuing
hours of interviews, the defendant made numer-
ous inculpatory, spontaneous, oral and written
statements to the police concerning the events un-
der investigation. There is no evidence that the

police in any way coerced statements made by
the defendant, nor induced them by any threats or
promises, implied or otherwise, concerning either
the charges in this case against the defendant or
charges, real or imagined, against his family. The
People met their burden in establishing the volun-
tariness of the statements of the defendant.”

An extrajudicial confession is inadmissible
against an accused if it is involuntarily made (CPL
60.45[1], People v. Anderson , 42 N-Y.2d 35, 37,
396 N.Y.S.2d 625, 364 N.E.2d 1318 [1977] ). A
confession is “involuntarily made” when it is ob-
tained by a public servant engaged in law enforce-
ment activity by means of any promise or statement
of fact which creates a substantial risk that the de-
fendant might falsely incriminate himself (CPL
60.45[2][b][i] ).

[17][18][19][20] To determine voluntariness,
courts review all of the surrounding circumstances
to see whether the defendant’s will has been over-
borne (Anderson, 42 N.Y.2d at 38, 396 N.Y.S.2d
625, 364 N.B.2d 1318; Arizona v. Fulminanle. 499
U.S. 279, 285-286, 111 $.Ct. 1246, 113 L.Ed.2ri
302 [1991] ). Of course, ‘'coercive police activity is
a necessary predicate to the finding that a confes-
sion is not ‘voluntary’ within the meaning of the
Due Process Clause of the *414 Fourteenth Amend-
ment” ( Colorado v. Connelly, 479 ILS. 157, 167,
107 S.Ct. 515, 93 L.Bd.2d 473 [1986] ). In our ana-
lysis, the hearing court's factual determinations,
resting largely upon its assessment of the credibility
of the testifying officers, are entitled to deference (
see People v. ProchUo, 41 N.Y.2d 759, 761, 395
N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ). In a cap-
ital case, moreover, our obligation to weigh the
evidence and determine whether the jury was justi-
fied in its conclusion beyond a reasonable doubt
“extends to the hearing court's finding as to the vol-
untariness of the confessions” (People v. Carbon -
aro, 21 N.Y.2d 271, 274, 287 N.Y.S.2d 385, 234
N.E,2d 433 [1967] ). These findings must be re-
viewed “by the same standards applicable to a ver-
dict of guilt” (id. quoting People v. Leonti, 18

© 20 1 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1227

811 R£.2d 1053 Page 22

2 N,Y.3d 383, 81 1 N.E,2d 1053, 779 N.Y.$.2d 399, 2004 N.Y. Slip Op. 01 143
(Cite as: 1 N.Y.3(1 383, 811 N.E.2d 1053, 779 N.Y.S.2d 399)

N,Y.2d 384, 389, 275 N.Y.S.2d 825, 222 N.E.2d
591 (1966] ),

***418 **1072 Defendant concedes that the
hearing court made “no findings adverse’* to him.
Under our independent factual review power, we
find ample evidentiary support for the hearing
court’s factual findings. A review of the circum-
stances here, moreover, shows that defendant's con-
fession was voluntary, and that coercive police
activity did not occur.

Defendant was placed in an interview room just
after 5;00 P.M, and immediately began asking to
speak to the District Attorney, saying he only
wanted to “deal with the head man.” He told anoth-
er investigator, who was passing by in the hall, to
send in the person handling his case while he still
felt like talking, As soon as the homicide investig-
ators entered the interview room at about 5:45 P.M.
and introduced themselves, defendant announced
that he had matters he wanted to clear up. Investig-
ator Sheridan told defendant that first, he had to
read him his rights. Defendant insisted he would
tell them everything they wanted to know, but he
wanted his family released. Investigator Sheridan
gave defendant his Miranda warnings and defend-
ant waived his rights,

Defendant immediately began talking. Before
the investigator could put the Miranda card away,
defendant stated that he would tell Investigator
Sheridan what he wanted to hear, but repeated his
demands. Sheridan explained, “1 have to know what
it is that you want to tell me" and defendant respon-
ded, “I will tell you about the homicides.” When
Sheridan asked for more information, defendant
said, “I can tell you about Johvanny,” Sheridan

asked whether defendant killed Johvanny *415
PM 1 5

(Diaz), and defendant admitted that he did,
and again repeated that he wanted his family re-
leased. Defendant then admitted to killing “a black
guy near a milk plant” (Peter Holley) and to killing
Matos.

FN19. During the interrogation, defendant

admitted his involvement In the double
homicide of Diaz and Joangel Toro.

Sheridan then told defendant that he would
check on the status of his family members, but he at
no time promised defendant that they would receive
lenient treatment if defondant confessed. Indeed,
defendant confessed to the murders without any
prompting from the investigator other than requests
for more information. As is obvious from the ex-
changes, defendant believed that he was in a posi-
tion to influence the release of his family, acting
under a self-created impulse to tell the police
“everything" in order to achieve his own objective (
see generally People v, Gonzales, 75 N, Y.2d 938,
940, 555 N.Y.S.2d 681, 554 N.E,2d 1269 [1990] ).

Now, defendant claims that police led him to
believe that they would limit the charges against his
young brother, Victor, in exchange for his confes-
sion. By the point at which Victor's charges were
discussed, however, defendant had already con-
fessed to the four murders and to sole possession of
the gun. The investigators did not promise that they
would fulfill his desire; to the contrary, they in-
formed defendant that his brother would not be re-
leased. Nor, despite defendant's claims, was there a
true quid pro quo involving the dropping of gun
charges against defendant’s mother and other relat-
ives. Once defendant acknowledged that the gun
was his, police released those relatives and in-
formed defendant that they had been set free, This
information did not render involuntary defendant’s
subsequent elaboration about the murders.

[2l)[22] Defendant also maintains that the in-
vestigators should have been required to tell him
that his family’s fate ***419 **1073 was unrelated
to whether he confessed, claiming they actively ex-
ploited his apprehension about his relatives. Yet the
investigators were not required to dissuade defend-
ant from making incriminating statements, or disab-
use him of his fantasy that he could control the cir-
cumstances of the interrogation and win the release
of his family. We find the reasoning of the Appel-
late Division in People v. Johnson persuasive: “[ijl

© 201 1 Thomson Reuters. No Claim to Ortg. US Gov. Works.

1228

81 1 N.E.2d 1053 Page 23

2 N.Y.3d 383, 81 1 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01 143
(Cite as: 2 N.Y3d 383, 811 N.E.2d 1053, 779 N,Y.S.2d 399)

is not an improper tactic for police to capitalize on
a defendant's sense of shame or refuctance to in-
volve his family in a pending investigation absent
circumstances which create a substantial risk that a
defendant might *416 falsely incriminate himself’ (
177 A.D.2d 791, 792, 576 N.Y.S.2d 407 [3d Dept.
1991] [internal citation omitted] ).

A comparison with the circumstances underly-
ing our decision in Anderson, 42 N.Y.2d 35, 396
N.Y,S.2d 625, 364 N.E.2d 1318 [1977] is instruct-
ive. In Anderson, defendant was held for more than
19 hours without probable cause. He was deprived
of food and sleep for over 30 hours, questioned by
eight or nine officers operating in teams, isolated
from friends and family during the entire period,
and was not told of his right to counsel until the in-
terrogation had been underway for more than 13
hours (42 N.Y.2d at 39-41, 396 N.Y.S.2d 625, 364
N.B.2d 1318). By contrast, in this case, police had
ample cause to arrest defendant for the attack on
McWilliams. Once in custody, defendant was given
his Miranda warnings and waived them. Police
offered defendant a cheeseburger, candy, water,
coffee and cigarettes, as well as medical treatment.
He insisted that lie wanted to clear up the crimes,
not go to a hospital. Defendant was questioned by
two investigators. He was allowed two meetings
with Victor and a meeting with Monica. He also
was permitted a photic call to his mother, to verify
that she had returned home. On this record, there is
no evidence that defendant's will was overborne or
his capacity for self-determination impaired, and
every indication that he spontaneously, aggress-
ively and voluntarily confessed to suit his own pur-
poses.

FN20. At trial, the People must prove the
voluntariness of a confession beyond a
reasonable doubt (Anderson, 42 N.Y. 2d at
38-39, 396 N.Y.S,2d 625, 364 N.E.2d
1318) when that issue is properly raised by
the defense. For voluntariness to be sub-
mitted to the jury, there must be a proper
objection and an offer of evidence suffi-

cient to raise a factual dispute (Peopfe v.
Cefaro, 23 N.Y.2d 283, 286-287, 296
N.Y,S.2d 345, 244 N.E.2d 42 [1968] ). De-
fendant submitted a written request to
charge involuntariness conditioned upon
his own introduction of evidence showing
involuntariness. He subsequently withdrew
his request on the record, as a matter of
strategy, and never renewed it at the
charge conference. Thus, he failed to place
the voluntariness question before the jury (
id at 288-289, 296 N.Y.S.2d 345, 244
N.E.2d 42).

B. The Admission of the Statements about Other
Homicides

Defendant claims on appeal that he was de-
prived of a fair trial through the admission, follow-
ing re-cross-examination of Sheridan, of his state-
ments regarding other homicides. 1 In their dir-
ect case, the People initially introduced defendant's
statements pertaining only to the Matos killing and
the Avenue D incidents. The trial court ultimately
permitted the People to introduce defendant’s entire
confession* including the statements about other
homicides, to rebut the claim that defendant *417
falsely confessed in an unreliable interrogation to
killing Matos to cover for his wife. The trial court
explained that the jury needed to hear the entire
confession to discern “the truthfulness of the
[MatosJ ***420 **1074 statement and the motiva-
tion for the defendant to give the various versions”
of it. In our view, defendant, in the particular cir-
cumstanc^^f this case, opened the door to this
evidence.

FN21. Defendant couched his objection to
the trial court solely in terms of an eviden-
tiary error.

FN22, Defendant's other claims of eviden-
tiary error, pertaining to the admission of
the Avenue D incidents and his abuse of
Janette Sanchez, and the exclusion of a
taped telephone call to his mother, are also
without merit.

© 201 1 Thomson Reuters. No Claim to Orig. US Oov. Works.

1229

811 N.E.2d 1053 Page 24

2 N,Y,3d 383, 81 1 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01143
(Cite as: 2 N,Y.3d 383, 811 N.E,2d 1053, 779 N.Y.S.2d 399)

(i.) Pretrial Motion Practice

On July 31, 1998, more than three months be-
fore trial, the prosecution informed defense counsel
by letter that it did not intend to offer testimony in
its direct case regarding other murders “unless the
door is opened through argument, cross-ex-
amination or presentation of evidence by the de-
fendant." The People warned that if defendant
raised voluntariness claims “which m any way re-
late to what took place during the times the defend-
ant was making statements regarding the Diaz, Toro
or Ho!i[e]y murders/' they would seek to present
rebuttal evidence concerning the interrogation as a
whole.

In an August 10, 1998 letter in reply, defense
counsel acknowledged;

"We recognize that redaction of evidence of the
prior homicides necessarily creates gaps in the
time-line of the interrogation.... Please be assured
that we will not exploit these gaps by arguing to
the jury that these gaps reflect the time when im-
permissible pressure was brought to bear upon
[defendant]/*

On August 31, 1998, defendant moved for a
pretrial order redacting from his confession any ref-
erence to the other homicides. The People respon-
ded that for the first hour and three quarters of the
interrogation, defendant spoke about four murders
intertwined with his repeated request that police re-
lease his family. The People offered to structure
their direct examination to eliminate all conversa-
tions regarding “the four bodies and the defendant's
demands to have his family released.** The prosecu-
tion again warned defendant against opening the
door to his admissions through, for example, ques-
tions about time gaps in the confession or alleged
promises made by police about his family's release.
The prosecution maintained that it would be unfair
to require the investigators to answer *418 ques-
tions about any alleged promises without being able
to explain to the jury “the entire substance of that
conversation."

After extensive oral argument, the court told
defense counsel that many issues m the case could
open the door to the full confession. To avoid that
outcome, the trial court offered defense counsel the
opportunity to submit a “wish list** of suggested re-
dactions from the confession. The court addition-
ally invited defense counsel to submit proposed
questions for cross-examination, so that the court
could, in advance, point out areas that might be in
the danger zone. Plainly attentive to the potential
for prejudice to defendant, the court stressed that
the other statements could be relevant to issues in
the case, requiring examination of the “prejudicial
or probative value of the statements themselves/*

Despite the trial judge's suggestion, defendant
chose not to provide a list of proposed redactions.
Thus, without benefit of a proposal from defense
counsel, the court issued its pretrial order.

'The People point out that during the time
period that Inv. Sheridan and Sgt. Gropp spoke to
the defendant^ there was intertwined conversation
regarding other issues dealing with the release of
his family.... The prosecution, however, is con-
cerned that the period***421 **1075 of time
taken up regarding the conversations on the Diaz,
Toro and Holley murders may be raised by the
defense on the issue of voluntariness on the Ma~
tos-Rodri[g]uez murder, which is lire subject of
this trial. The People wish to reserve the right to
question the investigators on re-direct examina-
tion should the defense ‘open the door* to an en-
larged area of questioning.

“The Court is sensitive to the People’s request but
feels there is no way to make a definitive order in
advance of the trial on the People's request.
Therefore, it is the direction of the Court that the
People should structure their direct examination
regarding the conversations between the defend-
ant and the police from 5:45 p.m. to 7/30 p.m, on
November 1, 1996 [sic ] in a way in which all
conversations regarding references to *4 bodies'
and the defendant's demand to have his family re-
leased are eliminated. The Court will allow lee-

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1230

&ll N.&2d 1053 Page 25

2 N,Y.3d 383, 81 1 N.E,2d 1053, 779 N. Y.S.2d 399, 2004 N.Y. Slip Op. 01143
(Cite as; 2 N.Y.3d 383, 81 1 N.E^d 1053, 779 N,Y.S.2d 399)

way to the pro5ecution*419 by way of leading
questions on these issues. The Court will pre-
serve the People's right to challenge the defense
cross-examination and to raise the issue as to
whether the defendant has raised any issue as to
the voluntariness of the statement relating to what
took place during the times the defendant was
making statements regarding the Diaz, Toro, and
Holley murders." ^

FN23. In his dissent, Judge G.B. Smith ac-
knowledges tiie trial court's conclusion that
"evidence of the other murder confessions
wos relevant to address issues raised about
the voluntariness and the truthfulness of
defendant's statements, especially as they
related to promises made by the police and
their negotiations with the defendant"
(Smith dissent at 437, 779 N.Y.S.2d at
434, 81 i N.E.2d at 1088). While Judge
Smith disagrees with that conclusion, the
trial court manifestly had a reason for-
drawing it other than to “demonstrate that
the defendant was predisposed to commit
the crime charged" (Smith dissent at 437,
779 N.Y,S.2d at 434, 811 N.E.2d at 1088).

(ii.) The Defense Strategy

Despite knowledge that the People were pro-
hibited from eliciting the chronology of the confes-
sion or defendant's demands to have his family re-
leased, and despite the (rial court’s repeated warn-
ing that the preclusion order would be revisited
based on what ensued at trial, the defense opened
with its own theory explaining the Matos statement:
that defendant was motivated to confess in an
"obvious and elaborate ritual to cover for his wife."
In the opening, defense counsel told the jury that
defendant's statement “was nothing less than Mr.
Mateo taking everything his wife did onto his
shoulders." Disregarding his own earlier assurance
that he would not exploit the time gaps, counsel
also urged the jurors to “pay close attention to the
circumstances and chronology of the statements."

Through the cross-examination of police wit-
nesses, defendant's strategy emerged. Questions
about the extent of his leg injury, the timing of
events in the interrogation and his concern for his
family (which the People had been barred from ex-
plaining) began painting a picture that defendant, in
significant pain throughout a very protracted night-
time interrogation, confessed to Matos’ murder in
an unreliable manner. By contrast Sheridan, the
People's main witness on the Matos murder, testi-
fied in the truncated fashion directed by the pretrial
order.

Sheridan testified that defendant first admitted
to shooting Matos himself, then changed his stoiy
and claimed Monica did it, then went back and
forth several times, and even claimed that Monica
did it, but he would take the blame because he was
a "king" and wanted the death penalty. Afler***422
**187<» these various oral *420 admissions, defend-
ant again asserted in his written statement that he
pulled the trigger. By contrast, he never wavered
from his assertions that he decided to execute Ma-
tos and that Monica was following his orders.

Sheridan also explained that after he completed
taking the Matos statements, his partner Sergeant
Gropp took defendant's written statements about
Avenue D. When the People finished their direct
examination of Sheridan, the defense sough! rulings
from the trial court about eight areas of cross-
examination of the investigator concerning: 1) the
time gaps in the interrogation, 2) alleged promises
that defendant's family would be released, 3) al-
leged promises that police would reduce Victor's
charges, 4) alleged promises about Monica’s
charges, 5) defendant’s concern for his family’s
safety, 6) the substance of what defendant learned
about Monica’s statements, 7) the substance of de-
fendant’s taped telephone call to his mother (in
which he said he “took four bodies”), and 8) de-
fendant’s physical condition during the interroga-
tion.

The trial court advised defense counsel that, in
light of this plan of attack:

© 201 1 Thomson Reuters. No Claim to Orig. US Gov, Works.

1231

8U N,E2d 1053 Page 26

2 N.Y.3d 383, 82 1 N.E.2d 1053, 779 N.Y.S,2d 399, 2004 N.Y! Slip Op. 01 143
(Cite as: 2 N.YJd 383, 811 N.E.2d 10S3, 779 N.Y,S.2d 399)

“I think that the redactions that have been agreed
to up to this point by the People on the direct
would not continue through the cross-ex-
amination. [f I'm going to be telling the jury that
in evaluating the testimony of Investigator
Sheridan concerning the statement attributed to
the defendant, one of the things I’d be telling
them is they should be looking at the totality of
the circumstances, everything that happened. And
in this case, ... the picture is a picture of a defend-
ant who is attempting to take control of the inter-
view process and asserting very vigorously con-
ditions that he requires as conditions precedent to
his talking to the officers from the moment of
calling Investigator Sennett and telling him to get
somebody in there to talk to him, setting condi-
tions for his family's release, setting conditions
for what charges would be placed against his
family, specifically Victor Cordero.”

The court agreed to allow defense counsel to
ask general questions about the time gaps and de-
fendant's injury, but again warned that if counsel
strayed into the areas of voluntariness and reliabil-
ity, then the door would open to the entire confes-
sion. Defendant's demands for the release of his
family, the *421 court determined, were ongoing
negotiations and their unveiling would open the
door to the People's rebuttal. Defense counsel could
ask general questions about Victor's role at Avenue
D, but any questions about negotiations about either
Victor's or Monica’s charges would open the door
to rebuttal. Indeed, the court reminded defense
counsel that Monica had told investigators that de-
fendant was responsible for "several other bodies.”

Inquiry about defendant’s meetings with Victor
and Monica, the court concluded, would also re-
quire explaining defendant's motivation for making
admissions, and the jury would then need to con-
sider the full circumstances of the confession to

FN24

evaluate voluntariness and reliability. The
court again warned that if defense counsel was not
careftil, "the doors could fling open,”

FN24, Defendant’s telephone call to his

mother was not part of his confession, but
occurred afterward. The trial court pre-
cluded cross-examination about it because
of defendant’s admission to "four bodies.”

On cross-examination, defense counsel quickly
returned to the themes of the time gaps and defend-
ant’s injury, reiterating that the interview began at
5:45 P.M., that a meeting with Victor took place at
8:00 ***423 **1877 P.M,, and a second meeting
with him was "much, much later,” and that defend-
ant was limping. Cross-examination was then inter-
rupted because defendant developed the flu. When
the trial resumed, defense counsel asked for three
more rulings. Specifically, counsel asked if he
could cross-examine the investigator about: 1) de-
fendant's meeting with Monica, 2) defendant’s
second meeting with Victor and 3) the phone call.
The court repeated that the phone call was still off
limits because of its reference to “four bodies,” but
determined that the defense could ask generally
about the meeting with Monica, although not its
substance. The defense withdrew the request to ask
about the second meeting with Victor, because dur-
ing that conversation, defendant told Victor that he
would take the rap for “these murders.” Yet imme-
diately after those rulings, defense counsel asked
Sheridan about the second meeting with Victor, and
whether defendant had confided that “this stemmed
from his personal relationship with Janette and
Monica; is that correct? Was there anything of that
nature discussed?” The investigator answered, “I
don’t believe so.”

The defense also questioned Sheridan whether
the written Matos statement was “typed out in a
single session” or whether *422 there was a
“break” before it was finished. Counsel persisted,
asking, “But the narrative was done and then you
asked him is there anything else you want to say?
And then he added a final sentence or two?*’ The
investigator responded, "Yes. That’s it.” Defense
counsel additionally established that defendant ad-
ded a second, handwritten addendum to that state-
ment at approximately 2:00 a,m,, more than eight

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1232

815 N.E.2d 1053 Page 27

2 N.Y.3d 383, 8 It N.E.2d 1053, 779 N,Y,S.2d 399, 2004 KY. Slip Op, 01143
(Cite as: 2 N.YJd 383, 811 N.E,2d 1053, 779 N.Y.S.2d 399)

hours after the interrogation began. He further eli-
cited that defendant expressed concern for his fam-
ily members “throughout” the interrogation.

Defense counsel completed cross-examination
and offered to withdraw his request for a voluntari-
ness instruction after the People argued that any
such request would “open up the questioning of In-
vestigator Sheridan to the entire contents of the in-
terview” oil redirect. The court asked defense coun-
sel for clarification, noting that it had:

“some concerns about the questions that have
been asked up to this point about the physical
condition of the defendant, because it's not asked
presumably just to be out there. It’s asked to per-
haps give the impression to the jury that Mr.
Mateo was under such a physical disability be-
cause of the wound to his leg that he spoke with
the officers. And certainly the time of the inter-
view is left hanging here. The time of the state-
ment being signed. And all that that [sic ] goes to
it. T think we’re asking the jury to speculate.”

Defense counsel claimed that he had
“assiduously avoided reference to physical condi-
tion in my cross-examination” of Sheridan. The
court, however, pointed out that “[everybody that
had a passing view of your client was asked if he
was limping or seemed to be bothered by a
wounded leg.” Defense counsel then promised not
to “get into the classic voluntariness issues.”

As for a truthfulness charge, the court ob-
served:

“This issue about truthfulness of the statement,
reliability of the statement, any issue that could
be phrased to the jury as asking them to, mem-
bers of the jury, try to read between the lines
about what's going on here, those are issues that
I’m very concerned about, and I guess I want to
alert all of you to that. If the defense is really
withdrawing this *423 and that these issues are
not going to be asked of Investigator Sheridan or
any ***424 **1078 other officer, then I would

expect they not be referenced either. Is that clear
to everybody?

“[THE PEOPLE]: Yes, Your Honor.

“[DEFENSE COUNSEL]: Yes, Your Honor.”

On redirect, the prosecutor posed a few ques-
tions about defendant ordering Monica and Victor
to follow his commands, and about the decision to
kill Matos. On re-cross, defense counsel asked
about defendant's assertion that he was “going to
take the [ ]rap for this or take the blame for this.”
Counsel asked whether Sheridan “pressed him on
the matter” and finally, asked whether defendant
stated it was “because he wanted [the] death pen-
alty.” The prosecutor objected on the ground that
the questions were beyond the scope of the redirect.

The court asked counsel to approach, and after
a 15-minute recess in which it reviewed Sheridan's
report on the interrogation, observed:

“I think alt of this goes to truthfulness of the
statement and negotiations on the statement. If
you are going to be arguing that to the jury, on
the issue of whether the statement itself is truth-
ful and the motivation for changes, this is What
it's about it seems to me. It is so interwoven, at
least the setting of this police report, the way that
it's couched in this police report, it starts out from
the moment the rights are read that Mr. Mateo is
setting the agenda for how the statement is going
to be taken, under what conditions, and even
what subjects are going to be covered. I can un-
derstand, based on what your defense is-and I
guess this is one of the things that we all talked
about at various stages in the case-that we
wouldn't know until we were here completely
what tenor the case would take. I understand also
why you haven't, up to this point, up to the re-
quests for the charge, really indicated what it was
that you were going to be saying at the trial, but
now we are here and if there is an issue about the
truth fulness of the statement and the motivation
for the defendant to give the various versions that

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1233

8H N,E,2d 1053 Page 28

2 N.Y,3d 383, 81 1 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op, 0U43
(Cite as: 2 N.Y, 3d 383, 81 1 N.E,2d 1053, 779 N.Y,S.2d 399)

have been described by the witness, then I think
it att comes in, the entire testimony about the oth-
er homicides, the contacts with the family, the
belief *424 that others may have been informing
on him, I think that alt comes in. To say that il
doesn’t, I think, again, asks the jury to determine
the truthfulness of the statement without knowing
what all the circumstances surrounding the taking
of the statement were.”

The court concluded that defendant's motiva-
tion for making the written statement “involved
other criminal acts that he faced” and was inter-
woven with his desire to see that members o^his
family were released from police custody.

Aware of the potential prejudice to defendant, the
court acknowledged that it would:

FN2S. At that point in the proceedings, de-
fendant's belated offer to withdraw his re-
quest for a truthfulness charge on the ques-
tion of defendant’s motives for confessing,
after sharply focusing on that question,
was an empty one, as the People argued
and the trial court concluded.

"inform the jury that the information concerning
other homicides is not offered as an indication
that the defendant committed this homicide for
which he is charged or any of the crimes for
which he is charged, but it’s offered on the issue
of the truthfulness of the statement and what mo-
tivation, if any, Mr. Mateo may have had to alter
his description of the events.”

Sheridan then testified concerning defendant’s
full confession, followed by an ***425 **1079 in-
struction warning die jury that the testimony was
admitted for "a very limited purpose.” The trial
judge explained that the statements about other
homicides were not to be considered as any indica-
tion of defendant’s propensity for committing
crimes. Rather, the court charged, the jury should
consider the probability or improbability of the Ma-
tos statements and what motivation, if any, defend-
ant had to make them, and should reflect on the In-

terrogation as a whole to assess the truthfulness of
the Matos statements. In its final charge, the court
repeated these instructions to the jury.

(iii.) Analysis

[23][24][25][26][27] It is well settled that evid-
ence is relevant if it has any “tendency in reason to
prove any material fact” {People v. Alvina, 71
N,Y.2d 233, 241, 525 N.Y, S, 2d 7, 519 N.E.2d 808
[1987] ). All relevant evidence is, moreover, ad-
missible at trial unless barred by some exclusionary
rule. Even where relevant evidence is admissible, it
may still be excluded in the exercise of the trial
court's discretion if its *425 probative value is sub-
stantially outweighed by the potential for prejudice
{People v. Scarola, 71 N.Y.2d 769, 777, 530
N.Y.S.2d 83, 525 N.E.2d 728 [1988] ). When a
party “opens the door” during cross-examination to
excluded evidence, the opponent may seek to admit
the excluded evidence in order to explain, clarify
and fully elicit the question that has been only par-
tially exposed on cross-examination {see e.g.
People v. Rojas, 97 N.Y.2d 32, 735 N.Y,S.2d 470,
760 N.E.2d 1265 [2001]; People v, Regina, 19
N.Y.2d 65^78, 277 N.Y.S.2d 683, 224 N.B.2d 108
[1966] )/ “The ‘opening the door’ theory must
necessarily be approached on a caae-by-case basis”
{People v. Melenc/ez , 55 N.Y.2d 445, 452, 449
N.Y.S.2d 946, 434 N.E.2d 1324 [1982] ).

FN26. While the Smith dissent rests en-
tirely on People v. Molineux, 168 N.Y.
264. 61 N.E. 286 (1901], that was never
the argument of the defense at trial, or its
objection to admission of the statements,
ot the basis for the trial court's ruling, In-
deed, defendant’s mistrial motion, made
several days after the statements were re-
ceived in evidence, recognized that the rul-
ing was based solely on the defense having
opened the door. We note, moreover, that
the evidentiary rule concerning
“door-opening” is at least as venerable as
the rule excluding prior bad acts {see e.g,
People v. Buchanan, 145 N.Y. 1,23-24,39

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1234

8U N.E.2d 1053 Page 29

2 N,Y,3d 383, 811 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01 143
(Cite as: 2 N.Y.3d 383, 811 N.E.2ct 1053, 779 N.Y.S.Zd 399)

N.E. 846 [1 895] [acknowledging defendant
opened the door, in first degree murder
prosecution, to hearsay conversation
between witness and coroner to rebut sug-
gested inference concerning the motives of
the testifying witness] ).

Nor is defendant's current contention
that the trial court dropped a “surprise,
mid-trial decision” on defense counsel
supported by the record. From day one,
counsel was repeatedly warned that
overstepping the preclusion order could
open the door to defendant's full confes-
sion.

[28] There is no doubt that this interrogation,
as a whole, was probative of a material issue in the
case-defendant's motive for confessing to the Matos
murder-and could aid the jury in assessing the
truthfulness of that portion of defendant's confes-
sion. There is also no doubt that it was defendant
himself who made his motive for confessing an is-
sue in this case. Eschewing the court's offer before
trial commenced to make selective redactions from
the statements, and to pre-approve areas for cross-
examination, the defense knowingly embarked on a
dangerous strategy that during trial was periodically
revisited by the court and the parties, and ultimately
went too far.

The defense, in its opening statement, argued
that the jury should acquit defendant of first degree
murder because he confessed, in a lie, to cover for
his wife. Four areas of testimony then became
troubling***426 **1080 to the trial judge. First,
after Sheridan's direct testimony, the jury knew
simply that defendant confessed to the killing of
Matos. What was omitted were defendant’s stage-
setting declarations that he would give the police
“everything” in exchange for what he wanted.
Second, the jury was left with the impression that
defendant was interrogated *426 from 5:45 P.M. to
2:00 A.M. concerning one murder and the Avenue
D incidents. During that time, he actually spoke at
length about four murders as well as two brutal

home invasions at Avenue D, intertwined with de-
mands for the release of his family.

Third, as the trial court emphasized, the juiy
heard repeatedly that defendant had a bandaged leg
wound and was limping. What was beyond the
jury's knowledge was the fact that, despite his in-
jury, defendant refused offers of medical treatment

because he insisted on first clearing up the fouT
FN27 . r

homicides. Finally, having learned in the

opening that defendant was motivated to confess in
an “obvious and elaborate ritual to cover for his
wife,” the jury heard that defendant and Monica
were involved in one murder. It did not know that
defendant also confessed to three murders having
nothing to do with Monica. Nor did it know that
Sheridan told defendant early on that Monica was
facing serious charges and defendant did not care
that she “had been caught” and would not be re-
leased.

FN27. True, Sheridan had testified on the
People's direct case that defendant's leg
was wounded and he was offered medical
treatment but refused. The trial court
ordered limited cross-examination about
the injury:

“If the testimony and evidence of the
physical condition of the defendant is ar-
gued to the jury as being relevant on the
issue of voluntariness of the statement
and reliability of the statement, then
clearly evidence of the defendant’s abil-
ity to assert himself, to control the cir-
cumstances or attempt to control the cir-
cumstances under which the statements
were made, to control the circumstances
under which the interrogation took place,
setting the conditions for that interroga-
tion, for verification of those conditions
that had been agreed upon, all those go
to his state of mind, his ability to think,
perceive, react, and as such all bear on
the issue of reliability and voluntari-
ness.”

© 201 1 Thomson Reuters. No Claim to Orig. TJS Gov. Works.

1235

811 N,E.2d 1053 Page 30

2 N.Y3d 383, 811 N.EJ2d 1053, 7?9 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01 143
(Cite asi % N.Y.30 383, 811 N.E,2d 1053, 779 N.Y.S.2d 399)

We disagree that, in these circumstances,
we are creating a new rule that “the
People can circumvent an order exclud-
ing evidence of prior bad acts by intro-
ducing evidence that, if introduced by
the defendant would open the door to
those prior bad acts” (Smith dissent at
445). Rather, the defense was explicitly
told that it could ask general questions
about the injury but if it went further,
creating the impression that the injury
rendered the confession unreliable, it did
so upon peril of opening the door to
proof of what actually happened during
the interrogation. As the trial court con-
cluded, defense counsel's repeated em-
phasis on the injury, as part of the false
picture before the jury, crossed the line
that had been drawn.

Compounding the problem of the distorted pic-
ture before the jury was the defense tactic of claim-
ing it had no intention of opening the door, then
persistently nudging it ajar. Incrementally, it be-
came apparent to the trial court that, for the jury to
assess defendant's claim that his admission to the
murder of Matos was a lie, it had to view that state-
ment in its extraordinary*427 context. The final,
withdrawn defense question- whet her defendant
claimed that he confessed because he wanted the
death penalty-underscored for the court and high-
lighted for the jury the enigma of defendant's mo-
tivation for confessing to the Matos murder: was it
to cover for Monica, to get the death penalty, or
something else?™ 26

FN28. Judge Smith maintains that ”[t]he
jury was not being called upon to decide
what would motivate defendant to offer
any confession at all. The defense was try-
ing to persuade the juiy only that the oral
confession rather than the written one was
the true account of the killing” (Smith dis-
sent at 450). Yet in claiming the written
statement a He, defendant explained il

away in another lie-that he confessed to
cover for Monica. The jury was thus called
upon by defendant to examine why he con-
fessed and the People were permitted to
answer that question with proof that he ad-
mitted not one but four murders, not for
Monica, but to achieve the release of his
family.

***427 **1681 As the court well knew, but the
jury did not, the People had been precluded from
presenting defendant's actual motivation for con-
fessing-his belief that he could set the terms of his
interrogation, claim responsibility for four murders
and win his family’s release. The defense cannot, on
one hand, claim that defendant is innocent of first
degree murder and lied to cover for his wife, and on
the other, abuse the preclusion order and bar the
People from refuting that claim. In effect, "the de-
fense converted the shield of the preclusion order
into a sword by arguing that the People should not
be allowed to supply” defendant's true motive for
confessing {Rojas, 97 N.Y,2d at 39, 735 N.Y.S.2d
470, 760 N.E.2d 1265). In these unusual circum-
stances, the jury was entitled to decide whether the
defense claims rang true in context.

At bottom, the Court divides over what
amounts to a fundamental disagreement about the
trial record in this case. For an appellate court, the
best evidence of who said what is in the transcript
and wc therefore have quoted extensively from it in
an effort to show how the issue regarding defend-
ant's statements developed during trial-thc pivotal
inquiry. One prominent example of our difference
is the claim that it was the People, and not the de-
fense, who “opened the door” (Smith dissent at
440, 441, 779 N.Y.S.2d at 410-411, 413, 811
N.E.2d at 1064-1065, 1067). In fact, Sheridan testi-
fied on direct on November 16 and 17, 1998 (record
at 14626-14702), and we are unable to find-wn/i/
defendant’s cross-examination-any testimony bring-
ing out the fact that defendant confessed in an
eight-hour interrogation, about the early morning
hour when the interview ended, or about its chrono-

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1236

811 N.E.2d 1053 Page 31

2 N.Y.3d 383, 81 1 N.E,2d 1053, 779 N.Y.S.2d 399, 2004 N,Y, Slip Op, 01 143
(Cite as: 2 N.Y,3d 383, 81 J N,E,2d 1053, 779 N.Y.S.2'! 399)

logy-

The trial court, of course, observed this evolu-
tion of the issue firsthand before making its ulti-
mate ruling that the potential *428 for prejudice to
defendant did not substantially outweigh the pro-
bative value of the full confession. This ruling was
made not sua sponte, or in a vacuum, but after re-
peated admonitions to defense counsel, several
quoted verbatim in this writing. To diminish the po-
tential for prejudice, moreover, the court instructed
the jury concerning the limited purpose for which
the clarifying evidence was being admitted. Unlike
the Rosenblatt dissent, we will not disregard the tri-
al court’s “explicit emphasis twice, by cautionary
instructions to the jury” that the full confession was
introduced only so that the jury could consider the
truthfulness of the Matos statement and defendant's
motivation for making it, and not as proof of the
charged crimes (see People v. Till, 87 N.Y.2d 835,
837, 637 N.Y,S.2d 681, 661 N.E.M 153 [1995] ).

Should the court have made a more circum-
scribed ruling, permitting introduction of the other
statements in a redacted form to limit further the
potential for prejudice? That surely seems a better
option. Indeed, the court had given that option to
tire defense prior to trial, but the defense ignored it.
At trial, when the court ruled the statements ad-
missible, the defense never suggested-as both dis-
senters do today-that they be tailored so that
Sheridan would merely testify that defendant had
confessed to “other crimes.” But ***428

**1082 even such a ruling might have left the jury
to speculate about what “other crimes” would re-
quire an eight-hour confession, or be so compelling
that they would motivate defendant to forgo medic-
al treatment for a bullet wound.

FN29, Nor, surprisingly, did defense coun-
sel say anything when the prosecutor eli-
cited from Sheridan details corroborative
of the other homicides.

f29] Of course, “(tjhere is no litmus paper test
for determining when the probative value of the

evidence outweighs its potential for prejudice” {
People v. Ventimiglia, 52 N.Y.2d 350, 359. 438
N.Y.S.2d 261, 420 N.E,2d 59 [1981] ). 0 In

Ventimiglia, we determined that “[ijmportant in the
weighing process will be how the evidence
comes into the case, *429 that is, whether at the in-
stance of the People initially, or in rebuttal to a de-
fense offered by defendant” (id at 360, 438
N.Y.S.2d 261, 420 N.E.2d 59).

FN30. Ventimiglia did not involve door-
opening, but an application of the rule
against admitting prior crimes to show
propensity. As these concepts are often re-
lated, the reasoning of Ventimiglia is in-
structive (see Rojas . 97 N.Y.2d at 38, 735
N.Y.S.2d 470, 760 N.E.2d 1265). In Ven-
timiglia, moreover, we concluded that
“[w]hcre defendants charged with murder,
kidnapping and conspiracy have stated as
part of their planning that they have a
place for disposing of the body ‘where we
put people ... and they haven't found them
for weeks and months’, the statement is ad-
missible because its probative value as to
premeditation of the murder and as to the
plan of the conspiracy outweighs the preju-
dice resulting from the admission implicit
in the statement that defendants have com-
mitted prior murders” (id. at 355-356, 438
N.Y„S.2d 261, 429 N.E.2d 59),

Viewing the question of prejudice in the con-
text of the trial, this was a cose in which the other
statements came in as rebuttal to the defense the-
ory. As tbe trial court observed, **[tjhis isn't an
identification case. This is a statements case” in
which defendant's guilt of intentional second degree
murder was uncontested. By the time these state-
ments were received in evidence, the jury had
already heard the details of the Matos execution
from defendant's own words to Sheridan. Addition-
ally, it heard uncontested evidence of defendant's
crimes at Avenue D, through the testimony of the
people who actually fended him off. And it heard

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1237

8 H RE. 2d 1053 Page 32

2 N.Y.34 383, SI 1 N.E,2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01 143
(Cite as: 2 N.YJd 383, 81 1 N.E.2d 1053, 779 N,Y,S.2d 399)

that he had confessed in a fie to protect Monica.

But the law had altered the landscape for the
People by excluding probative evidence bearing on
the truthfulness and reliability of defendant’s ad-
mission to the Matos killing, and defendant sought
to exploit that pretrial ruling. In the tangible cir-
cumstances presented, where the main issue for the
jury was whether defendant was guilty of second
degree murder as an accomplice, or of intentional
first degree murder as the shooter or commander,
we hold that the trial court acted within the bounds
of discretion in its ultimate conclusion-resolving
the issue explicitly identified at the outset of the tri-
al-that the probative value of the full confession
was not substantially outweighed by its potential
for prejudice to defendant.

Finally, six of us conclude that, on this record,
the admissions about other crimes were probative
of a material issue in the case, and that the door was
opened by the defense, to one degree or another.
All seven of us remain deeply committed to the
just, faithful and equal application of the law, irre-
spective of guilt. In so doing, we need not examine
the trial court's ruling through the lens of what
might have been one of several appropriate re-
sponses in the heat of trial. Rather, the result
reached here rests on a succession of factors partic-
ular to this case, beginning with defendant's staging
of his statements to the police and the favorable
pretrial order he procured, and ending with the
skewed ***429 **1083 picture that his abuse of
that order produced-in short, turning the protective
shield into a sword. That was impermissible before
this case, as it continues to be after.

As we concluded in Harris . despite the success
of defendant's Jackson challenge to his sentence
(98 N,Y.2d at 496497, 749 N.Y.$,2d 766, 779
N,E,2d 705), his conviction for first degree murder
and the other offenses stands, *430 and we there-
fore affirm it. As a consequence, defendant's re-
maining contentions regarding his sentence are aca-
demic.

Accordingly, the judgment of County Court
should be modified by setting aside the sentence of
death and remitting to County Court for resenten-
cing in accordance with CPL 470.3G(5)(c) and Pen-
al Law §§ 60,06 and 70.00(5) and, as so modified,
affirmed; the appeal from County Court's order
dated March 1 1, 1999 should be dismissed.

SMITH, J, (dissenting).

Defendant's confessions to the murders of Joh-
v finny Diaz, Joangel Toro and Peter Holley were
improperly admitted at trial. The evidence had no
relevance to any material issue in the Matos case
and tended only to demonstrate defendant's violent
propensity. Nor did the defense open the door to the
admission of those confessions. The evidence does
not support the Court's conclusion on this issue.
The record illustrates that die defense did not raise
any issue warranting the introduction of the confes-
sions related to the three uncharged murders. The
evidence therefore should have been excluded pur-
suant to People v. Molinevx, 168 N.Y. 264, 61 N.E.
286 [1901] and its progeny. I therefore dissent and
vote to iever.se defendant's conviction and remand
for a new trial.

As arj initial matter, as l have stated in other
capita! cases this Court has heard since the rein-
statement of the death penalty, because the penalty
of death is qualitatively different than any other
type of sentence a court may impose, both in its
severity and its finality, there is a heightened need
for reliability {.we Woodson v, North Carolina, 428
U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2 d 944
11976] [plurality op.]; see also Caldwell v. Missis-
sippi, 472 U.S. 320, 340, 105 S.Ct 2633, 86
L.Ed.2d 231 [1985]; Beck v Alabama, 447 U.S.
625, 638, 100 S.Ct 2382, 65 L.Ed.2d 392 [1980];
People v. Harris , 98 N.Y. 2d 452, 497-506, 749
N,Y.S.2d 766, 779 N.E.2d 705 [2002] [Smith, J.,
concurring in part and dissenting in part]; People v.
Cahill, 2 N.Y,3d 14, 77, 809 N.E.2d 561 [2003]
[Smith, J., concurring] ). “Any error that increases
the risk of an unwarranted conviction, which would
bring the defendant a step closer to death, must be

€) 201 1 Thomson Reuters. No Claim to Grig. US Gov. Works.

1238

8UN.E,2dL053 Page 33

2 N.Y.3d 383,811 N.E.2d 1 053, 779 N.Y.S,2d 399, 2004 N, Y. Slip Op. 01143
(Cite as: 2 N.Y.3d 383, 811 N,E.2d 1053, 779 N.Y.S.2d 399)

subject to the heightened reliability standard*’ (
People v, Harris, 98 N.Y.2d at 503, 749 N.Y.S.2d
766, 779 N.E.2d 705 [Smith, J., concurring in part
and dissenting in part}; Stale v. Martinez, 132 N.M.
32, 36, 43 P.3d 1042, 1046 [2002] ["Because of the
gravity and irrevocability of the death sentence, and
the grave injustice that would accompany an erro-
neous execution, error in a capital case is more
likely to rise to fundamental error than the same er-
ror in a non-capital case. In a capital case, a legal
defense often represents the only lawful mechanism
by which a defendant may preserve his or her life.
Any error that encumbers *431 that mechanism un-
fairly debilitates the defendant’s claim to life, mag-
nifies the risk of an erroneous execution, and neces-
sarily constitutes a circumstance that shocks the
conscience and implicates a fundamental unfairness
within the system that would undermine judicial in-
tegrity if left unchecked" (citation and internal quo-
tation marks omitted) ] ). Indeed, as this Court
stated in Harris, “We ***430 **1084 are careful to
note that capital trial courts should exercise great
caution in making discretionary determinations....
The stakes are high for all involved” {People v.
Harris. 98 N.Y.2d at 490, 749 N.Y.S.2d 766, 779
N.E.2d 705).

Responding to defendant's appellate argument
challenging the constitutionality of the death pen-
alty based on the risk that an innocent person may
be executed, the People argue, “Sometimes, despite
all the steps taken by the Legislature and the Judi-
ciary to assure that such mistakes are few and far
between, human and institutional fallibility may
result in a wrongful conviction. And even if it has
not happened in the last thirty years and certainly
will not happen here, it is possible that an actually
innocent person will be someday executed.” Des-
pite this observation, no judge or lawyer can accept
the possibility of the conviction and execution of an
innocent person. It is therefore imperative for the
judiciary scrupulously to honor the defendant's con-
stitutional right to a fair trial and to apply carefully
the evidentiary rules established for the protection
of the innocent. In this case, however, even without

regard to heightened scrutiny standards, the admis-
sion of evidence that defendant had committed
three murders in addition to the crimes for which he
already stood accused was clearly erroneous.

It should be clear that the difference between
the majority and the dissent is not simply a differ-
ent reading of the record. One difference is that the
People never claimed that the defendant had opened
the door to testimony concerning defendant's con-
fession to three unrelated murders and the trial
court did not base its decision to allow that evid-
ence on its conclusion that the defendant had
opened the door, but the majority itself concludes
that the defendant opened the door. The second dif-
ference is that the majority does not address the de-
fendant's main argument for moving for a mistrial
and one of his contentions on this appeal, namely
that the introduction of the testimony concerning
three unrelated murders violated People v.
Motimux,

*432 A.

In addition to confessing to the two burglaries
at the Avenue D apartment building and the murder
of Juan Matos, defendant also told Detective
Sheridan that he had killed Johvanny Diaz, Joangcl
Toro and Peter Holley. Describing the first two
murders, defendant confessed that he and his cousin
“Moncho” had been hired by a drug dealer named
Charlie to shoot Johvanny Diaz in the knees and to
steal his jewelry because Diaz owed Charlie money.
Defendant and Moncho were to be paid $10,000 for
the shooting. They looked for Diaz and found him
on Jay Street. After they unsuccessfully attempted
to purchase drugs from Diaz, he walked across the
street to use a pay telephone. Joangel Toro ap-
proached Diaz while he was on the phone and stood
near him. Defendant and Moncho then put nylon
masks over their faces and walked over to Diaz.
Moncho pointed a .45 caliber gun at Diaz. When
Toro tried to walk away, defendant pointed a .38
caliber gun at him and forced him to return.
Moncho then shot Diaz in the face, which prompted
defendant to start shooting at Toro. After shooting

© 231 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1239

81 1 N.B.2d 1053 Page 34

2 N.Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N. Y. Slip Op. 01 143
(Cite as: 2 N.Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S.2il 399)

at both victims numerous times, defendant and
Moncho fled the scene.

Defendant then recounted to Detective Sherid-
an the murder of Peter Holley, According to de-
fendant, his cousin had come to him and said that a
man threatened him with a knife and stoic his bi-
cycle and jewelry. Defendant obtained a single-bar-
rel shotgun and drove through the streets with his
cousin to find the man. When they approached the
area of the robbery, ***431 **1085 his cousin saw
his bicycle on the side of the road. His cousin iden-
tified and pointed out Holley as the man who
robbed him, exited the car and retrieved his bicycle.
Defendant then drove up to Holley, who was trying
to get into his own parked car, shot him in the head
and drove away.

B.

Prior to trial, the prosecutor informed defense
counsel that the People would not seek to introduce
defendant's confessions to the three uncharged
killings unless the defense opened the door to the
evidence. In particular, the prosecutor warned that
he would seek the introduction of all of the defend-
ant's confessions if the defense challenged the vol-
untariness of the statements or sought to prove that
defendant's confessions were induced by promises
made to him by the police. The prosecutor also
noted that any attempts by the defense to exploit
the gaps in the timing of the interrogation during
which the admitted *433 confessions were obtained
would open the door to the remainder of defend-
ant’s confessions. Defendant's attorney agreed to
avoid those areas during his argument and in the
course of the cross-examination of the People’s wit-
nesses. Counsel, however, maintained that chal-
lenges to the truthfulness of defendant's confessions
regarding who actually shot Matos would not open
the door to the additional murder confessions.

During his opening statement, defense counsel
made no attempt to challenge the voluntariness of
defendant's confessions. As is relevant here, de-
fense counsel argued that at the core of the case lay
two questions: “Who did what? And why did they

do it?*' Counsel informed the jury that defendant
“gave an oral and a written statement while inter-
rogated by Invest igator[s] Sheridan and Gropp.” He
urged the jury to “pay close attention to the circum-
stances and chronology of the statements.” Counsel
went on to argue that in his written statement, de-
fendant attempted to take the blame for his wife's
actions because he felt responsible for Matos's
death. The prosecutor at no time suggested to the
court that arguments made in defense counsel's
opening statement opened the door to defendant's
confessions concerning the three uncharged
murders or that the disclosure of those confessions
was warranted.

What the defendant indicated in the opening
statement was that the defendant did not kill Matos
and did not order his wife to do so. Thus his
strategy, stated in the opening, was to blame Mon-
ica Szfekovics, his wife, for the murder and to pre-
vent a conviction for first degree murder. He stated,
"This killing, as tragic as it was, was at the un-
guided hands of Monica Szlekovics, a woman cap-
able of acts of violence, especially when it involved
a perceived threat with her relationship with Angel
Mateo.”

Following the direct examination of Investigat-
or Terrance Sheridan, the parties and the court dis-
cussed the areas which defense counsel intended to
explore on cross-examination and the arguments he
intended to advance based on the testimony. The
court informed defense counsel that a challenge to
the voluntariness of defendant's confessions based
on any alleged promises, as well as a challenge to
the reliability of his confessions based on the fact
that he had an injured leg at the time of the inter-
rogation or due to some other exerted influence,
would open the door to the evidence that he had
confessed to the three uncharged murders. Based on
the court’s ruling, counsel withdrew his previous re-
quest that the court give the jury an *434 instruc-
tion on the voluntariness ***432 **1086 or the reli-
ability of defendant’s statements.

FN1- It is important to note that regardless

© 201 1 Thomson Reuters, No Claim to Orig. US Gov. Works.

1240

811 N.E.2d 1053 # Page 35

2 N.Y,3d 383, 81 t N.E,2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op, 01143
(Cite as: 2 N,Y,3d 383, 811 N.E.2d 1053, 779 N,Y.S.2d 399)

of what rulings defense counsel sought be-
fore conducting Sheridan's cross-
examination, all that matters is what was
educed during testimony before the jury.
For that reason, for the purpose of this ana-
lysis, it matters not at all that counsel
asked to inquire about alleged promises
that defendant's family would be released
or alleged promises that the police made
regarding Monica’s or Victor's charges or
the substance of what defendant learned
about Monica's statements or the substance
of defendant’s telephone conversation with
his mother. Counsel’s requests to inquire
into all of those subjects were denied and
counsel fully complied with the trial
court's ruling.

At that point, counsel informed the court that
he intended to challenge only the truthfulness of de-
fendant's confessions. When asked for clarification
on this strategy, counsel explained;

"Whether the statement itself is a reliable rendi-
tion of what happened that night. It was taken
down according to his wishes and it was not true
in its ultimate.

“Your Honor, we have a dilemma where there’s
an oral statement and a written statement that es-
sentially contradict themselves as to an essential
fact. One will be reliable], one will not be.”

The court then responded, “You know, we have
an oral statement and a written statement that are
contradictory to each other on their face.” The court
nevertheless warned defense counsel that if he
sought to explain the contradictions by way of ar-
guments that challenge the voluntariness of the con-
fessions or the reliability of his statements based on
his injury, it would open the door to the other
murder confessions.

During the cross-examination of Sheridan, de-
fense counsel elicited that Sheridan took a written
statement from defendant on the late evening of

November 6, 1996 or early morning hours of
November 7. Sheridan further testified that defend-
ant met with his brother, Victor Cordero, at 8:00

FN2

P.M. and again at a later time in the evening.
Counsel also elicited that defendant's second hand-
written addendum to his written statement was
made at 2:00 A.M. or possibly later,

FN2. The majority suggests that defense
counsel’s questioning about defendant’s
meeting with his brother was inappropriate
(majority op. at 421, 779 N.Y.S.2d at 422,
811 N,E.2d at 1076). However, limited
questioning about whether defendant told
his brother that the Matos incident and the
home invasions “stemmed from his person-
al relationship with Janette and Monica”
was proper, particularly given that during
Sheridan’s direct examination, the prosec-
utor established that Sheridan had arranged
a second meeting with Victor at which
time defendant told Victor that he had con-
fessed to the police, apologized for in-
volving him in his crimes and said that
Victor would have to testify against him.

*435 Following up on testimony educed during
Sheridan's direct examination, counsel also elicited
that defendant had orally stated that bis wife had
shot Matos. Sheridan testified that defendant told
him that when the time came for his confession to
be committed to writing he intended to say that he
was the one who shot Matos, Defendant said that he
intended to take the blame for the shooting because
he believed that the incident was entirely his fault
and because he wanted the death penalty. Accord-
ing to Sheridan's testimony, defendant stated that he
would rather die than spend “a hundred years" in
prison.

After defense counsel's cross-examination of
Sheridan, the People made no argument that coun-
sel opened the door to the other statements and did
not otherwise seek to introduce the remainder of
defendant's confessions. Neither did the court state
that counsel's questioning warranted the introduc-

es 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1241

8H N.E.2d 1053 Page 36

2 N,Y.3d 383, 811 N,E,2c! 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op, 01 143
(Cite as: 2 N.Y.3d 383, 811 N.E,2d 1053, 779 N.Y.S.2d 399)

tion of the other murder confessions, ***433
**1087 Defendant's attorney assured the court that
he intended to argue that defendant's admission that
he had pulled the trigger killing Matos was not true,
but that he would not argue that the confession was
involuntarily extracted.

Following a redirect examination and re-
cross-examination of Investigator Sheridan on other
matters, the prosecutor informed the court that he
intended to conduct further redirect examination. At
no time did the prosecutor argue that questions
asked on re-cross-examination opened the door to
defendant’s confessions regarding the three un-
charged murders.

However, in a sua sponte ruling, the trial judge
stated that any challenge to the truthfulness of de-
fendant’s confessions and any argument as to the
reasons that he altered his version of the Matos
killing required the introduction of his statements
regarding the three uncharged killings. The court
reasoned that defendant's references to all four
killings were so intertwined that the jury’s assess-
ment of the truthfulness of defendant's statements
must include the confessions to all of the killings.
The court added that defendant's statement that he
would rather be sentenced to death than serve a
hundred years in prison required the jury to be
made aware of the other murders so that the state-
ment would make sense.

Defense counsel vehemently objected to the in-
troduction of the uncharged murders, noting that
the only way to defend the *436 capital murder
charge was to challenge die veracity of defendant's
confessions. The court nonetheless maintained that
the jury needed to consider all of the confessions in
order to evaluate the credibility of defendant’s
rendition of the Matos killing.

The People conducted a further redirect exam-
ination of Sheridan, at which time he testified about
defendant's confessions to die additional killings
and read to the jury defendant’s written statements
which described each of the killings in full detail.

Sheridan also testified regarding his independent
Investigation into the murders of Diaz and Toro.
Specifically, Sheridan testified that on the morning
of August 6, 1995, months before defendant's con-
fessions, he had been called to Jay Street where he
saw the lifeless bodies of Diaz and Toro. They were
lying on top of one another in a pool of blood at the
base of a pay telephone with its receiver dangling
off the hook. Diaz had been pistol whipped several
times with a large caliber handgun and had sus-
tained four gunshot wounds to his head and two to
his upper body, Toro had been shot once in his head
and twice in his upper body.

Following Sheridan's testimony, the court gave
a limiting instruction informing the jury that the
evidence was not offered to show defendant's
propensity to commit the crimes charged in the in-
dictment, but to illustrate the circumstances of the
confessions so that the jurors could evaluate their
credibility. The court subsequently instructed the
jury not to consider the truthfulness of the other
murder confessions. Thus the court allowed evid-
ence of the prior murders not because defendant
had opened the door but because of the trial court’s
own conclusion that it was necessary tp show
whether the defendant was telling the truth in his
confessions to the Matos killing.

Thereafter, in a written application, defendant
moved for a mistrial based on the admission of the
evidence of the three uncharged killings. Specific-
ally, defendant argued that the other murder confes-
sions should have been excluded under traditional
Molineux principles because the evidence was not
probative of any material issue in the case other
than defendant’s propensity toward violent behavi-
or. Defendant***434 **1088 claimed that since be
had already agreed not to challenge the Voluntari-
ness of his statements, the other murder confessions
were not relevant to any issue related to voluntari-
ness. He also argued that the evidence was not rel-
evant to assess the truthfulness of his statements
concerning the Crimea charged. Defendant further
argued that the prejudicial value of the evidence

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1242

811 N.E.2d 1053 Page 37

2 N Y,3d 3 S3, 81 1 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y, Slip Op. 01 143
(Cite as: 2 N.Y.3d 383, 811 N.E,2<! 1053, 779 N.Y.S.2d 399)

outweighed its probative effect.

*437 In response to the motion, the People ar-
gued that the admission of defendant's other confes-
sions was the result of extensive conferences with
the court regarding the circumstances that would
warrant the introduction of the evidence. The pro-
secutor argued that the evidence was probative of
the voluntariness of defendant's admitted state-
ments and that it was necessary to refute the de-
fense contention that he had given a false confes-
sion in order to secure his family's release from jail.

In an oral decision, the trial court denied the
motion, relying on its previous conclusions. The
court stated that the evidence of the other murder
confessions was relevant to address issues raised
about the voluntariness and the truthfulness of de-
fendant's statements, especially as they related to
promises made by the police and their negotiations
with the defendant for his statements.

C.

It is fundamental that evidence concerning a
defendant's uncharged crimes or prior misconduct
is not admissible if it cannot logically be connected
to some specific material issue in the case, and
tends only to demonstrate that the defendant was
predisposed to commit the crime charged (see
People v. Hudy, 73 NY.2d 40, 54, 538 N.Y.S.2d
197, 535 N.E,2d 250 [1988]; People v. AMno, 71
N.Y.2d 233, 253, 525 N.Y.S.2d 7, 519 N.E.2d 808
[1987]; People v, Ventimiglia. 52 N.Y.2d 350,
359-360, 438 N.Y.S.2d 261, 420 N.E.2d 59 [1981];
People v. Allweiss, 48 N.Y.2d 40, 46, 421 N.Y.S.2d
341, 396 N.E.2d 735 [1979] ). First pronounced by
this Court in 1901 in People v. Molineux, 168 N.Y.
264, 61 N.E. 286 [1901], this evidentiary rule is
widely recognized by state courts throughout this
country and the federal courts have steadfastly ad-
hered to it as codified by Federal Rules of Evidence
rule 404(b), F ^ To be ***435 **1089 sure, long
before our decision in Molineux, this rule, like
many other *438 rules of evidence followed in this
country, had its roots in 1 6th century England (se«
Joan L. Larsen, Of Propensity, Prejudice, and Plain

Meaning: The Accused’s Use of Exculpatory Specif-
ic Ads Evidence and the Need to Amend Rule
404(D), 87 Nw U L Rev. 651, 667 [1993]; .see also
1A Wigmore, Evidence § 58.2, at 1213-1214
[Tillers rev. ed. 1983] ). As this Court has recently
noted, the progeny of Molineux have preserved its
basic foundation: "a criminal case should be tried
on the facts and not on the basis of a defendant's
propensity to commit the crime charged” ( People v.
Rojas, 97 N.Y.2d at 36, 735 NY.S.2d 470, 760
N.E.2d 1265).

FN3, Contrary to the position of the major-
ity and Judge Rosenblatt, this case does
implicate People v. Molineux ( see majority
op. at 425 n. 26, 779 N Y.S.2d at 425 n.
26, 811 N.E.2d at 1079 n. 26; dissenting
op. at 455, 779 N.Y.S.2d at 445-446, 811
N.E.2d at 1099-1100). The issue here re-
gards the admissibility of evidence that de-
fendant had committed three murders
which are not charged in this capital
murder case. The Molineux rule deals with
just this type of evidence of prior bad acts
and requires that it be excluded unless it is
probative of a material issue other than the
defendant’s criminal propensities, and its
probative value outweighs its risk of preju-
dice to the defendant. Thus, it is the tradi-
tional Molineux principle that excludes this
evidence in the first instance. The prosec-
utor never noticed the other murder confes-
sions as Molineux evidence during the pre-
trial proceedings because he had assured
defense counsel in a letter that he would
not seek to introduce the confevssions un-
less defendant made them an issue at trial
(one of the exceptions to the Molineux
rule). But regardless of how the arguments
were framed before the trial court, the con-
ferences between the parties had all the
earmarks of a Ventimiglia hearing, a pro-
geny of Molineux, whereby the defense
sought to obtain an advance ruling from
the judge prohibiting the introduction of

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1243

811 N,E,2d 1053 Page 38

2 N.Y.3d 383, 81 1 KE.2d 1053, 779 N,Y.S,2d 399, 2004 N,Y. Slip Op. 01 143
(Cite as: 2 N,Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S.2d 399)

prejudicial testimony regarding defendant's
prior criminal behavior. Furthermore, in
his motion for a mistrial based on the in-
troduction of the other murder confessions,
defendant relied entirely on Molineux.
Generally speaking, evidence that would
otherwise be excluded under Molineux
may be admitted where the evidence is
probative of a material fact in the case be-
ing prosecuted. A material issue for which
the evidence is probative does not neces-
sarily have to arise in the People's direct
case. Such an issue can arise as a result of
defendant's testimony or an interposed de-
fense. That circumstance would present an
exception to the exclusion of the evidence
pursuant to Molineux (see e.g. People v.
Smtarelti, 49 N,Y,2d 241, 247-248, 425
N.Y.S.2d 77, 401 KE.2d 199 [1980]
[evidence of defendant's past crimes relev-
ant to rebut insanity defense]; People v.
Cahatio. 30 N.Y.2d 199, 205-206, 331
N.Y.S.2d 430, 282 N.E.2d 322 [1972];
People v. A hi no, 71 N, Y.2d at 246-247,
525 N.Y.S.2d 7, 519 N.E,2d 808 [evidence
of prior drug sales admissible to rebut de-
fendant’s testimony that he did not sell
drugs and that he possessed 21 glassincs of
cocaine for his own personal use] ). Fi-
nally, it is not my position that “door open-
ing” by the defense is not a valid reason to
introduce evidence of prior bad acts. In-
deed, this Court has said as much in
People v . Rojas, 97 N.Y.2d 32, 735
N.Y.S.2d 470, 760 N,E.2d 1265 [2001], It
ts my position, however, that a fair reading
of the record reveals that the defense did
not open the door in this case and that
therefore, the confessions should have re-
mained excluded pursuant to the Molineux
rule.

The evidence of a defendant's prior bad acts is
“objectionable not because it has no appreciable
probative value but because it has too much. The

natural and inevitable tendency of the tribunal-*
whether judge or jury-is to give excessive weight to
the vicious record of crime thus exhibited and
either to allow H to bear too strongly on the present
charge or to take the proof of it as justifying a con-
demnation, irrespective of the accused's guilt of the
present charge” (I A Wigmore, Evidence § 58.2, at
1212; see also Michel, ton v. United States, 335 U.S.

469, 475-476, 69 S.Cf 213, 93 L.Bd. 168[1948];
People V. Rojos. 91 N,Y.2d at 36-37, 735 N.Y.S.2d

470, 760 N.E.2d 1265 ["propensity evidence invites
a jury to mis focus, if not base its verdict, on a de-
fendant's prior crimes rather than on the evidence-
or lack of evidence-relating to the case before it”];
People v. Hudy, 73 N.Y.2d at 55, 538 N.Y.S.2d
197, 535 N.E.2d 250; People v. Ventimiglia. 52
N.Y.2d at 359, 438 N.Y.S.2d 261, 420 N.E.2d 59;
People v. Allweiss, 48 N.Y.2d at 46, 421 N Y.S,2d
341, 396 N.E.2d 735 ["The rule is based on policy
and not on logic. It is *439 meant to eliminate the
risk that a jury, not ftjlly convinced of the defend-
ant's guilt of the crime charged may, nevertheless,
find against him because his conduct generally mer-
its punishment”] ). Therefore, “[w]hcre ... the evid-
ence proves only criminal propensity and serves no
other function in demonstrating defendant's guilt of
the crime charged, there is no legitimate basis for
its admission. No degree of care, in assessing its
value and possible prejudice and in giving caution-
ary instructions, can render it otherwise” ( People v.
Alvino , 71 N.Y.2d at 253, 525 N.Y.5.2d 7, 519
N.E.2d 808).

Of course, evidence relevant to some material
fact in the case, other than the defendant's criminal
propensities, is not to be excluded merely because
the evidence may reveal that defendant had com-
mitted other crimes (see People v. Ventimiglia, 52
N.Y.2d at 359, 438 N.Y.S.2d 261, 420 N.E.2d 59
[the role’s “policy of protection ***436 **1090
against potential prejudice gives way when evid-
ence of prior crime is probative of the crime now'
charged”]; People v. Allweiss, 48 N,Y.2d at 46-47,
421 N Y.S.2d 341, 396 N,E.2d 735), Thus, evid-
ence of defendant’s uncharged crimes or bad acts

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1244

811 N.E.ld 1053 Page 39

2 N.Y.3d 383, 81 1 N.E.2d 1053, 779 N,Y,S.2d 399, 2004 N.Y, Slip Op. 01143
(Cite as: 2 N,Y,3d 383, Bit N.E.2d 1053, 779 N.Y.SYZd 399)

may be admitted to demonstrate motive, intent, the
absence of mistake or accident, identity or a com-
mon scheme or plan {see People v. Molineitx, 1 68
N.Y. at 293, 61 N,E, 286). The list is merely illus-
trative and not exhaustive (see People v. Rojas, 97
N.Y.2d at 37, 735 N.Y.S.2d 470, 760 N.E.2d 1265;
People v, Ventimiglia, 52 N.Y.2d at 359, 438
N.Y,S.2d 261, 420 N.E.2d 59, People v. Santarelli .
49 N,Y,2d at 248, 425 N.Y.S.2d 77, 401 N.E.2d
199). Relevant here, this Court has recognized that
evidence of a defendant’s prior crimes may be intro-
duced to refute a defendant's claims at trial (.see
People v. Alvino, 71 N.Y.2d at 246, 525 N.Y.S.2d
7, 519 N.E.2d 808; People v. Ingram, 71 N.Y.2d
474, 479-480, 527 N.Y.S.2d 363, 522 N.E.2d 439
[1988]; People v. Santarelli, 49 N.Y.2d at 248, 425
N.Y,S,2d77, 401 N,E.2d 199).

Determination as to the admissibility of evid-
ence of a defendant's uncharged crimes or prior bad
acts requires a two-part inquiry. First, the pro-
ponent of the evidence must identify some material
issue, other than the defendant's criminal
propensity, to which the evidence is relevant (
People v. Hudy, 73 N.Y.2d at 55, 538 N.Y.S.2d
197, 535 N.E.2d 250; People v. Alvino. 71 N.Y.2d
at 242, 525 N.Y.S.2d 7, 519 N.E.2d 808) Second,
the court must weigh the probative worth of the
evidence against its potential for undue prejudice
resulting to the defendant [People v. Hudy, 73
N.Y.2d at 55, 538 N.Y.S.2d 197, 535 N.E.2d 250;
People v. Alvino, 71 N.Y .2d at 242, 525 N.Y.S.2d
7, 519 N.E.2d 808). Thus, “[i]f the evidence is actu-
ally of slight value when compared to the possible
prejudice to the accused, it should not be admitted,
even though it might technically relate to some fact
to be proven” {People v. Allwetss, 48 N.Y. 2d at 47,
421 N.Y.S.2d 341, 396 N.E.2d735).

Here, the majority concludes that defendant
opened the door to the admission of his confessions
to the three uncharged *440 murders. The evidence
does not support this conclusion. Hie prosecutor
did not argue at trial that the defendant had opened
the door. And the court itself did not rule that de-

fendant's questioning of any witness had opened the
door.

Both prior to and during the trial, the parties
had discussed at some length the possible argu-
ments defendant could make that would open the
door to the remainder of defendant's confessions.
The prosecutor had maintained that if defense coun-
sel sought to challenge the voluntariness of his
statement, or exploit the time gaps in the interroga-
tion or sought to show that the statement was unre-
liable because defendant suffered from a leg injury,
the remainder of the statements would become rel-
evant to refute those contentions. Defense counsel
agreed not to exploit the gaps in the interrogation
time-line and agreed not to challenge the voluntari-
ness of defendant's confessions.

Yet at no time following defense counsel’s
opening statement or during his cross-examination
of the People's witnesses did the prosecutor ever
claim that defense counsel had made an argument
or sought to elicit any testimony to create a material
issue in the case that could be answered by the in-
troduction of defendant's confessions to the un-
charged murders. At the time the trial judge ruled
the confessions admissible, the prosecutor had not
noted any action taken that had opened the door to
that evidence. That behavior is quite telling since a
prosecutor would normally urge the trial court to
introduce otherwise excluded evidence in ***437
**1091 order to refute arguments offered by the de-
fense. Moreover, even at oral argument, when
asked at what point during the trial defense counsel
had opened the door, the People could offer no
definitive answer.

The majority nevertheless agrees with the
People's argument, advanced for the first time on
appeal, that defendant opened the door to the evid-
ence by exploiting the unexplained gaps in the
time-line of the interrogation. It is noteworthy that
the trial court's reasons for admitting the evidence
of defendant’s uncharged crimes had nothing what-
soever to do with any purported exploitation of
gaps in the time-line of defendant’s interrogation.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works,

1245

811 N.E.2d 1053 Page 40

2 N.Y.3d 383, 81 1 N.E.2J 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op, 01 143
(Cite as: 2 N.Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S.2d 399)

Moreover, there is no evidence in the record to sup-
port that conclusion, Defense counsel's remarks
during his opening statement urging (he jury to pay
attention to the chronology of defendant’s state-
ments, taken in context, appeared to be merely an
attempt to alert the jury to the fact that defendant
had initially claimed that his wife shot Matos,
voiced his intent to change his story when the con-
fession was to be *441 memorialized and then
claimed to have shot Matos himself in the written
statement. At no time did he attempt to make it ap-
pear that the police had subjected defendant to a
drawn-out interrogation process in order to extract
an involuntary confession from him. Importantly,
defense counsel had withdrawn his request for a
jury charge on the voluntariness of the confessions
and repeatedly assured the court that he did not in-
tend to make any arguments to that effect.

Nor did defense counsel attempt to extract a
time-line of the interrogation from the prosecution
witnesses. Indeed, prior to the testimony of Invest-
igator Sheridan, it was the prosecutor who elicited
from its witnesses the approximate times of their
encounters with defendant. And it was the prosec-
utor who first elicited from Sheridan that he first
came into contact with defendant at 5:45 PJM. Dur-
ing Sheridan’s cross-examination, defense counsel
ascertained that defendant met with his brother at
about 8:00 P.M. and again later in the evening.
Sheridan also testified that at some point, defendant
met with his wife. In addition, Sheridan testified
that defendant made a second handwritten ad-
dendum to his statement concerning the Matos
killing at approximately 2:00 A.M. However, not
even these are indicative that defense counsel inten-
ded to exploit time gaps in the interrogation process
to argue that defendant’s statements were involun-
tary, He never specifically called upon Sheridan to
illuminate that the interrogation spanned eight
hours. As defense counsel had explained to the
court, those questions were intended to establish
when he had written the addenda in relation to the
two occasions when he met with bis brother and in
relation to when he met with his wife. Even the pro-

secutor agreed during a conference with the court
that the use of the evidence for that purpose would
pertwarrant the admission of the other confessions.

FN4. Contrary to the majority’s view
(majority op. at 427, 779 N,Y,S.2d at 427,
811 N.EJ2d at 1081), it is not my conten-
tion that the People opened the door to a
time-tine by eliciting testimony that de-
fendant confessed in an eight-hour inter-
rogation or that his interview concluded in
the early morning hours. But the People
did first establish the time of the start of
defendant's interrogation. It is my conten-
tion that the People opened the door with
respect to defendant's leg injury.

Moreover, since defendant did not seek to chal-
lenge the voluntariness of his confession, it was not
necessary for the prosecutor to account for the en-
tire period of the interrogation. It was sufficient for
the jury to know that defendant had given separate
written and oral statements regarding* **438
**1092 the Matos killingand *442 the two home in-
vasions at the Avenue D apartment building. It was
also apparent from the record that defendant had
taken breaks during the course of the interrogation
process. Thus, it would have been dear to the jury
that defendant had been interrogated about different
crimes by various police officers. And since noth-
ing in the defense counsel's cross-examination sug-
gested that the length of the interrogation suggested
improper exertion on defendant which would affect
the voluntariness or reliability of his confession, the
door to the unrelated murder confessions was not
opened.

Even had defense counsel sought to exploit the
time gaps in the interrogation process, it still would
not have justified the introduction of the details of
defendant’s statements concerning the other
murders. If the discrepancy in the liming of the in-
terrogation became an issue, it would have been ad-
equate to allow Investigator Sheridan to testify that
the reason that defendant's interrogation had exten-

© 2011 Thomson Reuters. No Claim to Orig, US Gov. Works.

1246

811 N,E,2d 1053 Page 41

2 N,Y.3d 383, 81 1 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01 143
(Cite as: 2 N.Y.3d 383, 811 N,K.2d 1053, 77 9 N.Y.S.2d 399)

ded into the next morning was because in addition
to confessing to the crimes here, defendant had
been providing the police with infonnation regard-
ing several unrelated open investigations. Since it
would not have been necessary to delve into the
specifics of the remainder of defendant's state-
ments, there was no reason to admit this evidence
to explain any time gap in the interrogation.

Also in concluding that the defense opened the
door to the confessions concerning the additional
killings, the majority cites Sheridan’s testimony re-
garding the leg injury that defendant suffered from
throughout the interrogation (majority op at 419,
422, 426). However, it was the People who intro-
duced that evidence, not the defense. During the
direct examination of Sheridan, the following ex-
change took place:

“Q. Before leaving the interview room, did you
have any conversation with the defendant about
his physical condition?

"A. Yes, we did.

“Q. What, if anything, did you ask the defendant
and what, if anything, did he tell you about his
condition?

“A. I asked him if he was injured and he said he
was.

Why did you ask him if he was injured?

*443 “A. Well, just in talking with him I could
see that he was having, he was in a little bit of
pain, He would wince from time to time. As I
said before, I noticed he was limping, so-he was
having some (rouble with his leg, so I asked him
if he was injured.

"Q. What did he tell you?

“A. lie said he was and started to pull his pant
leg up and I could see that there was a wound* or
what I assumed was a wound, that was bandaged
on his leg.

“Q. When you say bandaged, what did you actu-
ally see on his leg?

“A. I saw clean, white gauze wrapped around his
shin area of his lower right leg/'

The prosecutor then introduced People's exhibit
41, which was a photograph of defendant's leg at
the time of the interrogation. In the photograph, the
gauze wrapped around defendant's leg was visible.

The following exchange subsequently took
place between the prosecutor and Sheridan:

"Q. What did the defendant do after he pulled his
pant leg up?

"A. He started to unwrap the gauze to show me
his injury, and I stopped him ***439 **1093 and
1 said, you know, just leave it alone. I-

“Q. Why did you do that?

"A. Well, it appeared to be pretty well wrapped
up and 1 didn’t want to disturb it any further. The
injury did not appear to be bleeding. There did
appear to be some blood on the gauze but it was
not bleeding at the time that I looked at it so I
wanted it to stay in the condition that it was in at
that time.

“Q. What happened when you told him not to un-
wrap it any more?

“A. He stopped unwrapping it and then he
wrapped the gauze back around and put his pant
leg back down.”

“Q. After he did that, did you have any other-
well, did you ask him if he knew how that
happened?

*444 “A. Yes, I did.

“Q. What did he tell you?

“A. He said he wasn't sure. He said that it
happened earlier that morning on Avenue D but

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1247

81 1 N.E.2d 1053 Page 42

2 N.Y.3d 383, 8 1 1 N.E.2d 1053, 779 N,Y.S.2d 399, 2004 N.Y, Slip Op. 01143
(Cite as: t N.Y.3d 383, 811 N,E.2d 1053, 779 N.Y.S.2d 399)

he just wasn't sure how he got hurt.

“Q. Did you ask him if he was shot?

“A. I did.

“Q, What did he tell you?

“A. He said he just wasn't sure what it was. He
said things happened so fast on Avenue D he just
doesn't know how he got injured.

“Q. So the only thing he told you definitely was
that it happened that morning on Avenue D?

“A. Right.

“Q. Did you offer medical treatment at that
point?

"A. Yes.

"Q. How did you do that?

“A, I asked him if he wanted to go to the hospital
and get some treatment for it.

"Q. What did he tell you?

‘‘A. He adamantly replied, no, he didn't, he
wonted to get this cleared up.

“Q. Up until that point what, if any, observations
had you made of the defendant's physical condi-
tion?

"A. He was alert, conscious, able to field the
questions, intelligent. He was excited at times
and he obviously, he was in slight discomfort
from time to time but he didn't want any medical
treatment for it, and we had no difficulties com-
municating between the two of us."

By contrast, defense counsel's cross-ex-
amination of Sheridan regarding defendant’s leg in-
jury consisted entirely of the following exchange:

“Q. And you accompanied Mr, Mateo from one
interrogation*445 room to the next to basically

juggle positions with people in other rooms; is
that right?

“A. Yes, it is.

“Q. And he was limping at that point, right?

“A. 1 believe he was.

“Q. Did you give him assistance or did you walk
next to him or what?

"A. No. It wasn't a real noticeable staggered
limp. I could see he was limping slightly. Just an
observation. But, no, I didn’t need to give him
any physical assistance."

It is unreasonable to conclude as the majority
does that defense counsel’s questioning “crcat[cdj
the impression that the injury rendered the confes-
sion unreliable" (majority op. at 426 n. 27, 779
N.Y.S.2d at 426 n, 27, 81 1 N.E.2d at 1080 n. 27), If
the door to the other murder confessions was
opened based on the evidence of defendant’s leg in-
jury, it was the People's in-depth examination re-
garding the injury coupled with their introduction
of the photograph depicting defendant's bandaged
***440 **1094 leg that opened the door. Defense
counsel's limited questions about whether defendant
had a limp surely could not be to blame. Having in-
troduced the evidence themselves, the People
should not thereafter complain that the excluded
evidence should be admitted because of the possib-
ility that the defendant might use it to argue that his
statement was involuntary and unreliable, even
though the defendant had not yet done so. If the
People can circumvent an order excluding evidence
of prior bad acts by introducing evidence that, if in-
troduced by the defendant, would open the door to
those prior bad acts, the Molineux rule would lose
much of its potency.

It should also be noted that even if defendant's
leg injury would create the impression for the jury
that defendant had been suffering throughout the in-
terrogation and that it would affect the voluntari-
ness of his statement, Sheridan's testimony that he

€>2011 Thomson Reuters, No Claim to Orig, US Gov. Works.

1248

811 N.E.2d 1053 Page 43

2 N.Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y, Slip Op. 01143
(Cite as: 2 N.Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S.24 399)

offered defendant medical assistance but defendant
declined it and insisted on continuing the interroga-
tion suffices in dispelling that impression.

The majority further states that because of the
exclusion of the evidence of the other murder con-
fessions the People had been barred from explain-
ing why defendant had been concerned for his fam-
ily throughout his interrogation (majority op. at
419, 779 N.Y.S.2d at 421, 811 N.E.2d at 1075).
That is not the case. The People elicited from Po-
lice Officer D?-Ma$eio*446 (who testified before
Sheridan) that defendant's brother, Victor Coidero,
was arrested along with defendant. Moreover,
Sheridan testified on direct examination that when
he first met defendant, he was in an interrogation
room that was adjaceut to one in which another of
defendant's brothers, Gilberto Gomez, was being
held. Finally, Sheridan testified that defendant's
wife was also in custody at the time of defendant’s
interrogation. This evidence was more than suffi-
cient to explain why defendant would have been
concerned for his family. Moreover, the prosecutor
never claimed that questions that resulted in an-
swers that defendant had expressed concerns for his
family would open the door to the other murder
confessions. On the contrary, during discussions
with the court, the prosecutor stated, “In terms of a
general question to the investigator, did the defend-
ant express concern for his family, 1 think that type
of a general question could be asked without open-
ing the door to the other murder[s]. M

The majority also concludes that defense coun-
sel opened the door to defendant's confessions to
the uncharged murders by challenging the truthful-
ness of his confession of the Matos murder.
However, in so concluding, the majority miscon-
strues the defense strategy. For example, the major-
ity's opinion suggests that defendant's confessions
to the Matos killing were essentially consistent, and
that the defense had only the option of explaining
why they should not be believed (i.e., because he
was only trying to protect his family or because his
power was overborne as a result of the long inter-

rogation and the leg injury). This fails to account
for that portion of Sheridan's testimony in which he
stated that defendant had originally claimed that
Szlekovics shot Matos and then changed his story
to claim that he had shot Matos. The majority also
creates the impression that the only mention by de-
fendant that he wanted the death penalty came dur-
ing defense counsel's re-cross-examination, at
which time an objection to the question was sus-
tained (majority op. at 423, 427, 779 N.Y.S.2d at
423-424, 426, 81 1 N.E.2d at 1077-1078, 1080). FN5
In feet, during the ***44t **1095 prosecutor's dir-
ect examination of Sheridan, the following ex-
change took place:

FN5. Contrary to the majority's assertion
(majority op, at 427, 779 N.Y.S.2d at 426,
81 1 N.E.2d at 1080), defendant never said
that he was confessing because he wanted
the death penalty. Rather, he said that he
was changing his story about the Matos
killing and taking the blame for it because
he wanted the death penalty.

“Q. Now, during the course of that conversation
did *447 there come a time when you asked him
further questions regarding who actually pulled
the trigger and fired the shot that killed Mr, Ma-
tos?

“A. Yes.

“Q. What did you ask him?

"A. Well, at one point 1 looked Mr, Mateo right
in the eye and I said, who really pulled the trigger
in the basement-meaning the basement of the
Saxton Street house-and he looked at me and he
said why, and I said because I think Monica did
it...

“Q, What did he tell you?

“A. When I said 1 believe Monica did it, we be-
lieve Monica did it, he said she did. 1 couldn’t be-
lieve it. She is a crazy bitch, shot the guy. In oth-
er words, he didn’t expect her to pull the trigger.

€> 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1249

811 N.E,2d 1053 Page 44

2 N.Y.3d 383, 81 1 N.E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01 143
(Cite as: 2 N.Y.3d 383, 811 N,E,2d 1053, 779 N.Y.S.W 399)

But he said he was at the top of the stairs and she
shot the guy m the head, which surprised him.

“Q. So, at that time he told you he was at the top
of the steps when Mr. Matos was shot?

“A. Right.

“Q. What did he tell you after that?

“A; lie said, he said after he told me that Monica
did it, he then said, but Pm going to say that I did
it when I give you my statement.

"Q. Did you ask him about that?

“A. Sure. I said why. And he said, because 1 want
the death penalty.

*'Q. Did you ask him about that?

“A Yes.

“Q. What did you ask. him and what did he tell
you?

“A. I simply said, why, why do you want the
death penalty, and lie said because he was-and he
used the Spanish term which means king-he said, -
Pm a king and l can’t do a hundred years in jaii.

He said, I can’t take my life because I am a king
so I want *448 the death penalty for this, and he
also said because he deserved it.

"Q. During that conversation when he told you he
was going to take the blame for it, did he tell you
anything about whose fault he believed this was?

**A. Oh, he continually said that it was his fault
for Sherer Street.”

Of course, on cross-examination, defense coun-
sel followed up on this testimony:

<! Q, And essentially you looked him right in the
eye and you said, ‘Who actually pulled the trig-
ger*? Is that correct?

“A. Right.

“Q. And in response to that Mr. Mateo looked at
you and said, ‘Why? 4 Is that right?

“A. Yes.

“Q. And you in turn told him that you believed
Monica did it?

“A. Yes.

“Q. And in response lo that, Mr. Mateo indicated
she did and that he couldn't believe it. And that
she was crazy. He couldn't believe she shot him;
is that right?

“A. Yes.

“Q. And he was at the top of the stairs when she
shot him and didn't even see her shoot him; is
that correct?

**1096 “A. Right.

***442 “Q. And it's fair to say during this partic-
ular exchange when you looked Mr. Mateo right
in the eye and you say who actually pulled the
trigger, and he responds, his demeanor changed;
is that right?

“A. Yes.

“Q. And it changed, it was different from what it
was previous to this; is that correct?

*449 “A. Yes.

“Q. Now, after he indicates to you that he was
suiprised at this, he said I‘m still going to take the
blame for it. I’m going to take the [ ]rap for it; is
that right?

“A, Yes, he did.

“Q. And you basically followed that up wtth why
if she did it are you going to take the [ ]rap for it?

‘‘A. That's right.

“Q- And he indicated to you he's going to take the

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1250

81 1 HE, 2d 1053 Page 45

2 N.Y.3d 383, 81 1 N.E.2d 1053, 779 N.Y,S.2d 399, 2004 N.Y. Slip Op. 01 143
(Cite as; 2 N.YJd 383, 811 N,E.2<i 1053, 779 N.Y,S,2d 399)

[ ]rap for it because it's his fault and he wants the
death penalty; is that right?

“A. That's fight.

“Q. And you pretty much followed up on that:
Well, why do you want the death penalty? Basic-
ally you followed up on that: Why do you want
the death penalty? Is that correct?

“A. Yes.

“Q. He indicated, he used that Spanish term for
king and he didn't want to do a hundred years in
prison, he’d rather die; is that right? Something
along those lines?

“A. Yes. And that he deserved it and he couldn't
take his own life.

“Q. He also indicated to you that living in jail for
a hundred years would hurt his mother too much?

“A. Yes.”

The importance of this testimony cannot be
overstated for it is at the heart of the defense
strategy. The majority m ^characterizes the defense
as attempting to demonstrate that after being arres-
ted, defendant discovered that his wife was a prime
suspect in the Matos killing and then offered to im-
plicate himself in order to protect her from prosecu-
tion. This, however, was not the actual strategy of
the defense. The defense sought to establish, not
why defendant confessed to the Matos killing in the
first place but, given that defendant had offered
conflicting accounts of who killed Matos, which ac-
count was true. The defense sought to establish that
defendant’s oral statement that *450 his wife killed
Matos and that it was a surprise to him was true,
rather than his written statement in which he
claimed to have shot Matos himself.

From his opening statement to the jury, defense
counsel sought to show that defendant neither killed
Matos nor ordered his wife to do so and that his
wife acted on her own. Counsel's emphasis on de-

fendant's admission that he was taking the blame
for the killing because he felt responsible for it and
wanted the death penalty was an attempt to demon-
strate defendant's motivation for changing his story,
which would support the defense position that the

oral statement should be believed over the written
FN6

one.

FN6. According to the majority, the de-
fense tried to convince the jury that he had
changed his account of the Matos killing iu
order to protect his wife from prosecution
(majority op. at 427 n. 28, 779 N.Y.S.2d at
426-427, 811 N.E.2d at 1080-1081). In
fact, defense counsel sought to show that
defendant's motivation for changing his
story was apparent from his statement to
the police that he would take the blame for
the murder his wife committed, not out of
a desire to protect her, but rather to ensure
that he received the death penalty. Evid-
ence that defendant had confessed to three
uncharged murders does not refute this ar-
gument, but rather supports it Un-
doubtedly, from defendant's perspective,
the more murders to which he confessed,
the more likely that he would receive cap-
ital punishment. Thus, the door to the other
murder confessions was not opened by this
argument.

***443 **1097 Had the defense been success-
ful in convincing the jury that Szlekovics shot Ma-
tos and that it was a surprise to defendant (which
would tend to disprove the People's theory that he
commanded her to kill), as he claimed during the
oral confession, then he would have been convicted
of only second- degree murder, but not first-degree
murder. For the purpose of this strategy, it was not
necessary for the jury to know that defendant had
offered to tell the police about four murders in ex-
change for the release of his family from custody.
The jury was not being called upon to decide what
would motivate defendant to offer any confession at
all. The defense was trying to persuade the jury

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1251

8ilN.E.2d 1053 Page 46

2 N,Y.3d 383, 81 1 N,E.2d 1053,779 N.Y.S.2d 399, 2004 N Y. Slip Op. 01 143
(Cite as: 2 N.Y.3d 383, 811 N.E,2d 1053, 779 N.Y.S.2d 399)

only that the oral confession rather than the written

FN7

one was the true account of the killing.

FN7, It is for this reason that I disagree
with Judge Rosenblatt's assessment that
defendant tried to “create a false impres-
sion about the nature of his confession”
and thereby opened the door if only
slightly (dissenting op. at 456, 779
N.Y.S.2d at 447, 81 1 N.E.2d at 1 101).

The defense was perfectly entitled to pursue a
strategy challenging the truthfulness of defendant's
confessions about the Matos killing without risking
the introduction of the unrelated murder confes-
sions. Regardless of defendant's statements con-
cerning the uncharged murders, there can be no
question that defendant lied in his rendition of the
murder of Juan Matos. *451 Defendant said that his
wife shot Matos and expressed surprise that she had
done. so. He then said that when the time came for
his statement to be committed to writing, he would
say that it was he who shot Matos. When his state-
ment was memorialized, defendant claimed to have
been the shooter. Since the victim was shot only
one time, defendant's two versions of the killing in
which he identified different shooters necessarily
meant that he lied about the circumstances of the
killing. Even the trial judge acknowledged that the
contradiction was apparent on the face of the con-
fessions. And by the People’s indictment against de-
fendant, they acknowledge that because of defend-
ant's contradictory statements, not even they could
determine the identity of the shooter. It was for this
very reason that the People were forced to employ
alternative theories for the killing-on the one hand
arguing that defendant pulled the trigger, and on the
other hand arguing that defendant's wife killed Ma-
tos at defendant's command.

Therefore, the real issue that the jury had to de-
cide was whether defendant shot Matos; or his wife
shot Matos at defendant's command; or defendant's
wife shot Matos without having been commanded
by defendant to do so- The evidence that defendant
had also confessed to three additional murders

could not possibly assist the jury in determining
which of defendant's versions of the Matos shooting
was true. None of the other three murders was in
any way related lo Matos's killing. They involved
different dates, different accomplices and different
motives. The evidence of defendant's confession to
the killings of Diaz, Toro and Holley was probative
only of defendant's propensity lo kill and served no
other function in demonstrating his guilt of the
crimes charged here. Thus, there was no legitimate
basis for its admission and it should have been ex-
cluded as a matter of law (see People v. Hady, 73
N.Y.2d at 54, 538 N.Y.S.2d 197, 535 N.B.2d 250).

That the evidence of the three uncharged
murders was introduced in such a way as to demon-
strate defendant's proclivity ***444 **1098 to mur-
derous behavior was apparent by the manner in
which the evidence was introduced. In addition to
permitting Sheridan to testify about defendant's
confessions detailing the circumstances of the other
murders and to read the written statements to the
jury, he was permitted to testify in detail about his
own investigation into the murders of two of the
victims. Sheridan told the jury that on the day after
the murders (which took place months before de-
fendant confessed to them),' he had gone to the
murder scene and discovered the bodies of Diaz and
Toro. *452 Sheridan described the positions oftheir
bodies and testified to their numerous gunshot
wounds and injuries. There was no proper basis for
the admission of testimony regarding Sheridan's in-
dependent investigation into the uncharged
murders. It was not germane to any issue to be de-
cided in this case but rather was an apparent at-
tempt to establish defendant's guilt in the deaths of
Diaz and Toro. The only possible reason for mak-
ing such a showing would be to establish defend-
ant’s propensity to kill. As such, there was no legit-
imate basis for the admission of this evidence, and
its admission constituted error (see People v. Hudy,
73 N.Y.2d at 54, 538 N.Y.S,2d 197, 535 N.E.2d
250).

It is also necessary to recognize that even if the

©2011 Thomson Reuters, No Claim to Orig. US Gov. Works.

1252

81 1 N.B.2d 1053 Page 47

2 N.Y.3d 383, 81 1 N,E.2d 1053, 779 N.Y.S.2d 399, 2004 N.Y. Slip Op. 01143
(Cite as: 2 N.Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S.2d 399)

confessions to the uncharged murders were probat-
ive of defendant's contradictory confessions to the
Matos killing, their probative value was necessarily
hindered by the trial judge’s jury instructions. On
the one hand, the trial judge told the jurors that the
uncharged murder confessions were admissible
only to allow them to assess the truthfulness of de-
fendant’s statement regarding the Matos killing. On
the other hand, the court instructed them not to con-
sider the truthfulness of the statements concerning
the other murders. Such an instruction frustrates the
purpose of admitting the evidence in the first place.
If the jury is not to rely on the confessions as being
true, it cannot possibly use them to assess the truth-
fulness of defendant’s confession regarding the Ma-
tos killing. The evidence of the uncharged murders
could provide a useable measure of credibility only
if the jury could rely on its credibility. The court's
instruction disavowed the evidence even for this
purpose. As such, there was plainly no use for this
evidence other than to show defendant’s propensity
to commit the crimes charged.

Although the majority downplays the prejudice
flowing to defendant from the introduction of his
confessions to the three uncharged murders, the
prejudice here was overwhelming. It is difficult to
imagine what could be more prejudicial to a de-
fendant in a capital murder trial than evidence that
on separate occasions he had killed three people in
addition lo the person he stands accused of killing.
It is likewise difficult to imagine that a jury could
possibly avoid using the evidence of defendant's
uncharged crimes, for which he had yet to be
brought to justice, to conclude that he had such a
violent character that he likely committed the
crimes charged. After all, the juiy learned that de-
fendant was a hired gun for a drug dealer and had
killed to avenge the theft of a bicycle. It is certainty
doubtful that the *453 jury could have avoided the
conclusion that defendant was just the type of per-
son who would have killed Juan Matos and com-
mitted the crimes at the Avenue D apartment build-
ing.

Under the circumstances presented here, the
risk of unfair prejudice flowing from the introduc-
tion of this evidence substantially outweighed its
probative value. That defendant challenged the
truthfulness of his confession in no way tipped the
scales in favor of introduction of the evidence,,
***445 **1099 especially since defendant offered
contradictory accounts of who killed Matos.

The majority concludes that the jury would not
have been unduly prejudiced by the evidence of de-
fendant's additional murder confessions because of
the evidence of his crimes at the Avenue D apart-
ment building and the Matos killing. Defendant
faced a possible death sentence upon a first-degree
murder conviction for the Matos killing. The de-
fense theory of the case was that S 2 lekovics had
killed Matos without having been commanded to do
so and that therefore defendant should be convicted
of second-degree rather than first-degree murder.
Importantly, the difference between the degree of
conviction defendant would receive rested primar-
ily on which version of his confession to the Matos
killing the jury believed. The evidence that defend-
ant had killed three other people in addition to Ma-
tos could not possibly help the jury to determine
whether defendant's oral or written confession to
the Matos murder was true. But alerting the jury
that defendant had actually killed not one but four
people created an unjustifiable risk that the jury
would convict him for the highest possible degree
of murder because hi$ murderous behavior gener-
ally warrants punishment {see People v. Molineux ,
168 N.Y. at 292, 61 N.E. 286 [other crimes evid-
ence "would lead to convictions, upon the particu-
lar charge made, by proof of other acts in no way
connected with it, and to uniting evidence of sever-
al offenses to produce conviction for a single one,”
quoting Coleman v. People, 55 N.Y. 81, 90 (1873) J
). Significantly, in this ease, there was no mechan-
ism available by which the jury could otherwise
hold defendant accountable for those three addi-
tional murders. By contrast, the jury had the power
to punish him for the Avenue D home invasions by
convicting him.

© 201 1 Thomson Reuters. No Claim to Orig, US Oov. Works,

1253

811 N,E.2d 1053 Page 48

2 N,Y.3d 383, 811 N.E.2d 1053, 779 N.Y,S,2d 399, 2004 N.Y, Slip Op. 01143
(Cite as: 2 N.Y.3d 383, 81 1 N.E.2d 1053, 779 N,Y.S.2d 399)

As Chief Judge Cardozo aptly noted, “(i]f a
murderous propensity may be proved against a de-
fendant as one of the tokens of his guilt, a rule of
criminal evidence, long believed to be of funda-
mental importance for the protection of the inno-
cent, *454 must be first declared away” {People v.
Zackowitz. 254 N.Y, 192, 197, 172 N.E. 466 [1930J
). The evidentiary rule set forth in Molineux is the
law of this state. As such, it must be applied
equally-cven to the most unworthy of defendants,
and even if it means the toil of a retrial.

To be sure, an assignment of error to the intro-
duction of defendant's confessions to three un-
charged murders would necessitate a reversal of his
conviction and a new trial on all charges. But
justice requires that we faithfully apply the law to
the facts of the case before us. Many decades ago,
Judge Fuld, writing for this Court declared,
"Vicious though the crime was, convincing though
the evidence of guilt may seem to be, we could af-
firm only if we were to announce a doctrine that the
fundamentals of a fair trial need not be respected if
there is proof in the record to persuade us of de-
fendant’s guilt. We are not prepared to announce
such a doctrine” {People v. Mleczko, 298 N,Y. 153,
163, 81 N.E.2d 65 [1948] ). The introduction of the
confessions to three murders unrelated to the crimes
for which defendant was on trial deprived him of a
fair trial.

Because the trial court’s admission of defend-
ant's confessions regarding three uncharged
murders was in direct violation of the Molineux
rule, 1 dissent from the majority and vote to reverse
defendant's conviction and to remand the case for a
new trial.

ROSENBLATT, J. (dissenting).

Although both the majority's and Judge Smith's
writings are compelling, I am not fully in accord
with either and therefore ***446 **1100 write sep-
arately, Apart from its treatment of the trial court’s
ruling regarding defendant's confession (the pivotal
issue separating Judge Smith from the Court), I find
the majority opinion persuasive.

To begin with, I join the Court in rejecting de-
fendant’s claim that the People corrupted the truth-
finding process by advancing one theory at his trial
after having advanced what he asserts was an in-
consistent theory at Monica Szlekovics's trial. Fur-
ther, due process does not, in my view, require the
jury to embrace one of the People's theories (that
defendant killed Matos by his own hand or com-
manded Szlekovics to do so) to the exclusion of the
other. Because the jury arrived at a unanimous de-
termination that cither was the case, it should not
matter whether some jurors thought defendant
pulled the trigger and others thought he ordered
Szlekovics to do so. Further, 1 agree that defend-
ant's statement was voluntary and that the verdict
comported with the weight of the evidence.

*455 Like Judge Smith, however, I would hold
that the trial court committed reversible error by al-
lowing the jury to hear detailed recitations as to de-
fendant's three unrelated murders. The majority
concluded that this was an acceptable ruling, while
Judge Smith calls it a Molineux error. Judge Smith
adds that proof of defendant's having committed the
three other murders was not at all relevant to the
truthfulness of defendant’s confession and could not
possibly help the jury in determining exactly how
Matos met his death.

In my view, the majority correctly decided not
to characterize its ruling as a Molineux exception.
As the majority points out, no one even mentioned
Molineux, by name or in principle, when the court
was considering whether to allow the jury to leam
of the other three murder confessions (see majority
op. at 425 n. 26, 779 N.Y.S.2d at 425 n. 26, 811
N.E.2d at 1079 n. 26). Molineux issues generally
arise when the prosecution seeks to introduce proof
of uncharged crimes to prove that a defendant com-
mitted the crime charged. Molineux evidence, in
this sense, is often an offensive weapon employed
by prosecutors to persuade the jury of a defendant's
guilt. Thus, when a Molineux exception applies,
ft\e prosecution may, on its direct case, intro-
duce evidence of a defendant's uncharged crimes

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1254

8 ! 1 N.E.2d 1053 Page 49

2 N,Y.3d 383, 811 N.E,2d 1053, 779N.Y.S.2d 399, 2004 N.Y. Slip Op. 01143
(Cite ns: 2 N.Y.3d 383, 831 N.E.2d 1053, 779 N.Y.S.2d 399)

and need not wait until the defendant presents
something the prosecution needs to negate (see e.g.
People v. Cook, 93 N,Y.2d 840, 688 N.Y,S.2d 89,
710 N,E.2d 654 [1999]; People v. Cohen, 5 N.Y.2d
282, 184 N,Y.S.2d 340, 157 N,E.2d 499 [1959] ).
Of course, as a defensive tactic, the prosecution
may introduce evidence of uncharged crimes to
negate a claim of accident, mistake, or the like free
People v. Rojas, 97 N.Y.2d 32, 735 N.Y.S.2d 470,
760 N.E.2d 1265 [2001]; see also People v. Ingram,
71 N.Y,2d 474, 527 N.Y.S.2d 363, 522 N.E.2d 439
[1988]; People v. Goldstein, 295 N.Y. 61, 65
N.E.2d 169 [1946] ). Here, the prosecution did not
seek to introduce proof of the three unrelated
murders cither to prove that defendant killed Matos
or that he had a murderous propensity to do so
(personally or by command). Indeed, the People
fully abided by the trial court’s initial ruling that
any reference to the three murders was taboo. There
is no doubt that if defendant had not “opened the
door,” the trial court would never have let the jury
know of defendant’s other murders.

FN 1 . We discussed the Molineux rule and

its exceptions most recently in People v.

Rojas, 97 N.Y.2d 32, 735 N.Y.S.2d 470,
- 760 N.E.2d 1265 [2001].

***447 **1101 The question, therefore, is
whether the court was justified in allowing proof of
three unrelated murders in reaction to defendant's
having opened the door. As with most “door open-
ing” rulings, this one requires us to examine a num-
ber of factors,*456 including the size of the open-
ing and what lay on the other side of the door.
Here, defendant sought to exploit the court’s pre-
clusive ruling and create a false impression about
the nature of his confession. Nevertheless, in balan-
cing these considerations I conclude that the ruling
was wrong and fell far outside any tolerable exer-
cise of discretion.

It is not enough to say that defendant opened
the door. In many trials, parties open doors to the
introduction of proof. Sometimes they fling the
doors wide open; other times, they open them just a

crack. The trial judge's response should be propor-
tionate and reflect the size and nature of the open-
ing. Here, the court’s response, to admit the three
confessions, was inordinately prejudicial.

This is true for a number of reasons. 1 agree
that the court cautioned the defense to be careful in
how it went about challenging the truthfulness or
reliability of the Matos confession. But I cannot
agree that, to the extent he strayed at all, defense
counsel strayed appreciably beyond the boundaries
of the court's preclusive order or that his transgres-
sion called for such an extreme ruling. More im-
portantly, the prosecution did not ask for it. Ordin-
arily, a trial court can count on a party to protest
that its adversary opened the door to proof that in
fairness should be explained or refbted. The court's
unsolicited decision to allow proof of defendant's
three other murders (and thus acquaint the jury with
defendant's true “motivations” for confessing to the
Matos murder) was prejudicial in the extreme.

It is a fundamental tenet of evidence law that a
court, when assessing the admissibility of evidence,
engage in a weighing process, balancing prejudice
against probative value. Here, however, the court
failed to undertake any such analysis. The record is
bereft of any mention of the court's considering
possible prejudice. Indeed, in the protracted discus-
sions before it allowed the confessions into evid-
ence, the court never so much as mentioned the
word “prejudice” or its equivalent.

Nevertheless, the introduction of the other con-

FN2

fessions was overwhelmingly prejudicial. The
central question for the jury was whether defendant
pulled the trigger or ordered his wife to do so-or did
neither, in which case he would be guilty of *457
(intentional) murder in the second degree, as an ac-
complice. In this setting, the court allowed the jury
to lcam that defendant was (at least) a three-time
murderer. No evidence could have had a more per-
nicious impact on the jury than defendant’s hom-
icidal history. The admission of detailed evidence
of three unrelated murders would undermine the
neutrality and dispassion of even the fairest and

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1255

81 i N,E,2d 1 053 Page 50

2 N.Y, ,3d 383, 811 N.E.2d 1053, 779 N.Y.S,2d 399, 2004 N.Y, Slip Op. <H 143
(Cite as: 2 NX3d 383, 811 N.E.2d 1053, 779 N,Y,S.2d 399)

most diligent of factfinders,

FN2, While I do not see this as a Molineux
exercise, the end result, for me, is the
same. Under a Mo/ineux analysis, the test
boils down to a battle between prejudicial
effect and probative value. In evaluating
the “door* opening” type evidence before
us, the test is precisely the same, and leads,
in my view, to the same result that Judge
Smith reaches.

When discussing door openers, an .appropriate
starting point would be the case in which a defend-
ant’s conduct at trial most obviously opens the door
to the introduction of confessions that reveal un-
charged crimes: if a defendant with an established
history of violence testifies and ***448 **1102
purports to be a peaceable person, surely the pro-
secutor could explode the lie and impeach the de-
fendant with otherwise precludedor suppressed ad-
missions proving the contrary. ‘ Even if a de-
fendant does not testify, but falsely creates the im-
pression of being nonviolent, the prosecution would
have a strong basis to argue that the jury was being
misled and . that the defendant should pay a heavy
price for such duplicity. Here, however, defendant
neither testified nor asserted any facts in conflict
with his having committed three previous murders.
Defense counsel merely asked oblique questions
about the circumstances of the interview It is hard
to sec how these mildly suggestive queries stood to
be properly refuted by proof that he murdered three
other people. It is hard to see how the details of
three homicides were appropriate to refute what
amounted to innuendo. I cannot agree with Judge
Smith that the confessions were entirely irrelevant,
but I believe that their relevance was slight.

FN3. See e.g. Harris v New York, 401
US. 222, 91 S,Ct. 643, 28 L,Ed.2d I
(1971); Walter v. United States, 347 US.
62, 74 S.Ct. 354, 98 L.Ed, 503 (1954);
People v, Maerling, 64 N.Y. 2d 134, 485
N.Y.S.2d 23, 474 N.F..24 231 (1984);
People v. Knits, 18 N.Y.2d 318, 274

N.Y.S.2d 873, 221 N.E.2d 541 (1966).

Here, the appropriate response-one proportion-
ate to the sliver of an opening defendant created-
might have been to allow the prosecution to estab-
lish that defendant revealed having committed other
crimes. This would have blunted any possible claim
that the police were overbearing in questioning de-
fendant for several hours. Further, it would have
neutralized defendant’s dubious suggestion tliat by
confessing to the Matos murder he was engaging in
a noble fraud to exonerate his family. Of course,
the jurors might have speculated about those other
crimes, but could not easily leap to the conclusion
that ’‘other crimes” meant three vicious homicides.
Even if the trial court had some *458 legitimate
basis to inform the jury that defendant confessed to
a trio of other murders, it should have stopped
there. Defendant’s confessions to these other hom-
icides were lengthy and graphic, and the trial court
improperly permitted the jury to hear every detail.

For these reasons, t would reverse defendant's
conviction and order a new trial.

Judges C1PARICK, GRAFFEO, READ and R.S.
SMITH concur with Chief Judge KAYE.

Judge G.B, SMITH dissents and votes to reverse
and order a new trial in a separate opinion.

Judge ROSENBLATT dissents and votes to reverse
and order a new trial in another opinion.

Judgment modified by vacating defendant’s
sentence and remitting to County Court, Monroe
County, for resentencing in accordance with the
opinion herein and, as so modified, affirmed. Ap-
peal from County Court order dated March 11,
1999 dismissed.

N.Y. ,2004.

People v. Mateo

2 N.Y.3d 383, 811 N.E.2d 1053, 779 N.Y.S.2d 399,
2004 N.Y. Slip Op. 01143

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Grig. US Gov. Works.

1256

We'stlaw.

124 8.Ct. 2918

542 U.S. 939, 124 S.Ct. 2913, 159 L.Ed.2d 815,72 USLW 3734, 72 USLW 3764, 72 USLW 3768
(Cite (is: 542 U.S. 939)

H

Supreme Court of the United Slates
Eliot SPITZER, Attorney Oeneral of New York, pe-
titioner,
v.

Angel L, MATEO, et al.

No, 03-1589.

June 28, 2004.

Case below, 2 N.Y.3d 786, 812 N.E2d 1258.

Petition for writ of certiorari to the Court of
Appeals of New York denied.

U.S.,2004
Spitzer v. Mateo

542 U.S. 939, 124 S,Ct. 2918, 159 L.Ed.2d 815, 72
USLW 3734, 72 USLW 3764, 72 USLW 3768

end of document

Page i

© 2011 Thomson Reuters. No Claim to Orig, US Gov. Works.

1257

Westiaw.

124 S.ct. 25)29 Page 1

542 U.S. 946, 124 S.CI, 2929, 159 L.Ed.2d 828, 72 USLW 3734, 72 USLW 3764, 72 USLW 3769
(Cite as: 542 US. 946)

Supreme Court of the United States
NEW YORK, petitioner,
v.

Angel L. MATEO, et al.

No. 03-1570.

June 28, 2004.

Case below, 2 N.Y,3d 383, 779 N.Y.S.2d 399,
811 N.E.2d 1053.

Motion of respondent for leave to proceed in
forma pauperis granted. Petition for writ of certior-
ari to the Court of Appeals of New York denied.

U.S.,2004

New York v. Mateo

542 U.S. 946, 124 S.Ct 2929, 159 L.Ed.2d 828, 72
USLW 3734, 72 USLW 3764, 72 USLW 3769

END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1258

Westlavu

Page 1

Slip Copy, 2009 WL 3273878 (W.D.N.Y.)

(Cite as; 2009 WL 3273878 (W.D.N.Y.))

H

Only die Westlaw citation is currently available.

United Slates District Court,

W.D, New York.

Angel MATEO, Petitioner,
v.

Dale ARTUS, Superintendent of Clinton Correc-
tional Facility, Respondent.

No. 05-CV-02Q6 (MAT).

Oct. 9, 2009.

Daniel J. Henry, Jr,, VtUarini & Henry, L.L.P.,
Hamburg, NY, for Petitioner.

Wendy Evans Lehmann, Rochester, NY, for Re-
spondent.

ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

*1 Petitioner Angel Mateo (“petitioner”) filed
this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 challenging two convictions in

Monroe County Court before Judge John Connell.
FN 1

FN1. It is procedurally proper for petition-
er to raise his challenge to the capital and
non-capital conviction in a single § 2254
petition. See 29 U.S.C. § 2254, Rule 2(e)
Governing § 2254 Habeas Proceedings
(West 2009); Former Rule 2(d) Advisory
Committee Notes 1976 (“[A] single peti-
tion may assert a claim only against the
judgment or judgments of a single court
(i.e., a court of the same county or judicial
district or circuit). This permits, but does
not require, an attack in a single petition
on judgments based upon separate indict-
ments or on separate counts even though
sentences were imposed on separate days
by the same court/’)

Petitioner was first found guilty by a jury of
Murder in the First Degree (N.Y. Penal Law §
1 25.27(1 )(a)(vii)), as well as various counts of Kid-
napping in the Second Degree, Kidnapping in the
First Degree, Criminal Possession of a Weapon in
the Third Degree, Murder in the Second Degree,
Attempted Murder in the First Degree, Burglary in
the First Degree, and Assault in the First Degree.
He was sentenced to death for the first-degree
murder conviction and a total of 128 1/2 years im-
prisonment for the remaining counts. This convic-
tion is hereinafter referred to as “the capital case".

On November 8, 1999, petitioner was again
found guilty by a ju»y of five counts of Murder in
the Second Degree (Penal Law § 325.25(1), (3))
(“the non-capital case”). For that conviction he was
sentenced to 25-years~to-life, consecutive as to
each of the three victims fora total of 75 years.

For the reasons that follow, the Court finds that
petitioner is not entitled to habeas relief.

II. Factual Background and Procedural History

Between August 6, 1995 and November 2,
1996, petitioner and various accomplices engaged
in a crime spree involving kidnappings, assaults,
burglaries, and four murders in the City of

Rochester that resulted in two separate trials in
FN2

Monroe County Court. "Hie string of attacks re-
lating to the capitat case was, according to petition-
er, part of an obsessive quest to locate hia estranged
girlfriend Cindia Janette Sanchez (“Janette"), who
left him after months of brutal treatment and took
refuge in a women’s shelter. With the help of his
brother (“Victor”) and his wife (“Monica”) peti-
tioner conducted a month-long pursuit of Janette
that left a bloody trial in its wake.

FN2. Petitioner was originally charged in a
22- count indictment including three counts
of Murder in the First Degree. Two of
those counts charged petitioner with first
degree murder on a serial killer theory,

© 201 1 Thomsen Reuters. No Claim to Ofig. US Gov. Works.

1259

Page 2

Slip Copy, 2009 WL 3273878 (W.D.N.Y.)

(Cite as: 2009 WL 3273878 (WJD.N.Y.))

which were eventually dismissed by the
state court. The remaining count of first
degree murder, as well as charges of at-
tempted murder, second degree murder,
kidnapping, criminal possession of a
weapon, burglary, and assault, were
severed from the indictment and were the
subject of a capital trial held over a period
of two years in Monroe County Court.
Three of the murders were unrelated to the
other charges and petitioner was accord-
ingly tried separately.

A, The Non-Capital Case

1. The murders of Johvanny Diaz and Joangel
Toro

During the early morning hours of August 6,
1995, Johvanny Diaz (“Johvanny”) and an ac-
quaintance, Joangel Toro (“Joangel”) were killed in
a hail of bullets on Jay Street in the City of
Rochester by petitioner and his cousin, Romancito
Carrion, a.k.a. "Moncho” T. 1205. J In his state-
ment to police, petitioner claimed that he and his
cousin had been hired by a drug dealer (whom Joh-
vonny was in debt to) to shoot the victim in his
kneecaps and steal his jewelry, in order to
‘'embarrass” him, T. 1204-05.

FN3. Citations to “T. ” refer to the tran-

script non-capital trial.

That night, petitioner and Moncho went to the
area of Jay Street in Rochester in search of Joh-
vanny Diaz, asking several people where they could
find him. At about 2:00 or 3:00a.m. they saw Joh-
vanny drive up to his house, park his car, and walk
up the driveway. Joangel Toro had earlier been ap-
proached by the two men regarding Johvanny's
whereabouts, Joangel ran to Johvanny in the drive-
way and informed Johvanny about the inquiries.
Changing their plans, petitioner and Moncho first
decided to ask Johvanny for an eight-ball of co-
caine. Johvanny said that he didn't have it, and con-
tinued to walk to a pay phone across Jay Street with

Joangel following. T. 1206-07.

*2 Petitioner and Moncho approached the two
men at the pay phone, pulled nylon masks over
their faces, and drew their guns. While Johvanny
was using the pay phone, petitioner grabbed Joan-
gel, who was frightened, and told him to “calm
down”. Moncho started talking to Johvanny, and
when petitioner lifted his mask away from his face,
he heard ‘Ihc first boom.” The first shot hit Joh-
vanny in the face, and Moncho continued to shoot.
Petitioner also started shooting, but could not recall
how many rounds he fired. The petitioner and
Moncho then ran down the street, jumped a fence,
and met a friend who drove them to a motel, where
they stayed until the next morning. The medical ex-
aminer who performed the autopsy testified at trial
that Johvanny and Joangel died of multiple gunshot
wounds. Johvanny was shot in the forehead, eye,
neck, shoulder, and abdomen; Joangel was shot in
the hip and back. The two were shot a total of 1 1
times. T. 872-928, 1207-08, 1231-33,

2. The murder of Peter Holley

On September 22, 1995, petitioner was at his
cousin Jimmy Mateo's house when Jimmy told peti-
tioner that a “black guy over near Jones Park” had
robbed him of his bicycle and jewelry. Petitioner
found his aunt's .12 gauge shotgun and he and
Jimmy drove around the neighborhood until they
spotted the bicycle standing on its kickstand at the
comer of Fulton Street. Nearby, a man was walking
toward Lake Avenue, who Jimmy identified as the
thief. As the man approached a car and got inside,
petitioner pulled up alongside him and shot him in
the head through the passenger- side window of his
vehicle. Petitioner then drove away and parked on
Saratoga Street, where he left the car and the shot-
gun. When asked by investigators whether petition-
er knew he had killed Peter Holley when he shot
him, petitioner smiled and replied, “What the fuck
do you think when you shoot someone in the head
with a shotgun [?]” T. 1213-15, 1233-35, 1377,

B. The Capital Case

© 201 1 Thomson Reuters. No Claim to Grig, US Gov, Works.

1260

Page 3

Slip Copy, 2009 WL 3273878 (W.D.N.Y.)
(Cite as: 2009 WL 3273878 (W.D.N.Y.))

I. The hostage Incident on Avenue D

The next incident occurred on October 11,
1996, when petitioner and Monica forced their way
into an apartment on Avenue D in Rochester, which
was occupied by Janette's sister ("Maria*’), her boy-
friend ("Jose”), and her four-year old daughter
("Leila”). Wielding a .357 caliber handgun, peti-
tioner pointed the gun at Jose, threatening to kill
him and everyone else in the house. Monica
provided petitioner with a set of handcuffs, which
he placed on Jose and ordered the man to lie on the
floor. Monica brought sheets from the bedroom and
covered the windows. When Leila began to cry, pe-
titioner hit her on the head with the gun. Petitioner
then demanded that Maria call her sister at the shel-
ter, and made repeated threats to kill Maria, Jose,
and Leila. After multiple attempts, Maria was fi-
nally able to get through to Janette at the women's
shelter. Petitioner took the phone away and made
arrangements to meet with her. R, 14959-60,
14971-75, 15100-107 ™ 4

FN4. Citations to "R. ” refer to the Re-

cord on Appeal of the capital case, which
includes trial minutes.

*3 As Janette recalled, "he was telling me he
wanted to talk to me because he wanted to fix
everything with me.” Monica, meanwhile, sat pass-
ively while petitioner pleaded with Janette on the
telephone. Maria and Leila remained in the apart-
ment, crying and scared. Petitioner confided in Jose
that he always wanted to kill Maria for being "in
his business,” but, be said, "it's not my style to
come in homes and kill families. I only do that kind
of shit in the street.” Over three hours after the in-
cident began, petitioner and Monica left the apart-
ment with no one seriously harmed. Although Jose
later called the police, Janette "begged” him not to
press charges out of fear of retaliation by petitioner.
R. 14928, 14933, 14975-81, 14983-84, 14989-90,
15106-09.

Petitioner, determined not to give up on his
pursuit of Janette, attempted multiple times to con-

tact her through Maria or encounter her on the
street, and left her numerous messages at the wo-
men's shelter about his desire to talk to her and "fix
everything,” Although petitioner was legally mar-
ried to Monica, he admitted to Rochester Police In-
vestigator Terrance Sheridan (“Sheridan’*) that he
was deeply in love with Janette and that living with
her was the "greatest times of his life.” In his quest
for Janette, petitioner began "searching the city try-
ing to find her and,” as he later put it, "would hurt
anyone that got in his way.” R. 14650-51,
14927-33, 15113-14.

2. The kidnapping and murder of Juan Rodrlg-
uez-Matos

Juan Rodriguez-Matos (“Juan”) was a 20-year
old mentally ill individual with a fleeting connec-
tion to Janette Sanchez. Petitioner ultimately signed
a confession, typed verbatim as he narrated the
events to Rochester Police investigators, detailing
how his search for his “girlfriend” led to Juan's
murder.

On November 2, 1 996, petitioner, Monica, and
Victor were driving around the city looking for
Janette. As they turned onto Smith Street, petitioner
saw a "dude that knows a friend of [Janette].” Mon-
ica, who was driving, stopped the ear on Jay Street,
where petitioner got out and approached Juan. Peti-
tioner asked Juan about his friend and where she
could be found. "He was acting funny. He was say-
ing that he knew where she Jived at but couldn’t
give me the address. He knew it but didn't want to
tell. I pulled out my little .25 semiautomatic gun
and ordered him into the car." Petitioner directed
Monica to drive them to petitioner's house on Sax-
ton Street. Once inside, petitioner began to inquire
about where this friend of his lived. Juan finally ac-
quiesced, stating that he didn't want to be involved
or get his friend into trouble. Petitioner handcuffed
Juan and walked him down to the basement. Ac-
cording to petitioner, “I had already made up my
mind that 1 was going to kill him.”

Petitioner put a dork handkerchief over Juan's
eyes and shot him in the head. Juan apparently did

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1261

Page 4

Slip Copy, 2009 WL 3273878 (W.D.N.Y.)
(Cite as; 2009 WL 3273878 (W.D.N.Y.))

not die immediately, so petitioner put a plastic
garbage bag over his head. A few hours later, peti-
tioner checked to confirm that Juan was dead. Peti-
tioner and Monica wrapped the body in some cur-
tains and other items and the three (including Vic-
tor) rode to Sherer Street to dispose of the body.
Petitioner's confession concluded with the follow-
ing statement: “Everything [Monica and Victor] did
was from out of fear of me and what I would do to
them. If Monica is taking the blame for this it's be-
cause it's out of fear of me. I think I should get the
death penalty for the things I did.” R. 14662-70,
14683-88, 14699-702.

*4 Juan's body was later found in an empty lot
at the end of Sherer Street near the Rochester Alu-
minum Smelting Company. Consistent with the
confession, a dark-colored bandana was tied over
the victim’s eyes and, over it, a plastic bag encased
his head. The body was wrapped in a blanket and a
curtain. Dr. Thomas Smith, Deputy Medical Exam-
iner for Monroe County, ascertained that death had
been caused by a single bullet, likely from a small
caliber firearm, through the head. In addition to
other physical evidence, bloodstains on the base-
ment floor of petitioner's apartment matched Juan
Matos's blood type, and that of only six in 10,000
Hispanics. R. 15110-14, 15452-62, 15486-88,
15520-30, 15784-90.

Although petitioner said from the outset that it
was he who shot Juan, he also verbally described to
investigators how he was able to get Monica and
Victor to do his bidding, and at one point said that
Monica pulled the trigger: “She is a crazy bitch.
Shot the guy.” He further claimed that he was at the
top of the stairs when Monica killed Juan, but said
that he would take the blame for it and would ad-
here to his original version of the story in the state-
ment he'd give police. Among his various confes-
sions to investigators, petitioner wavered on the de-
tails of the killing, at one point saying that he
placed the gun in Monica's hand and was “headed
for the stairs” when she pulled the trigger. Regard-
less of which of the confessions is to be credited.

petitioner made the ultimate decision to take the
victim into the basement ane execute him. R.
14653-59.

3. The return to Avenue D

On November 6, three days after dumping Juan
Matos's body on Sherer Street, petitioner, Monica,
and Victor returned to the apartment of Maria Sanc-
hez, anticipating that her sister Janette would turn
up. After waiting several hours in the basement of
the Avenue D apartment, petitioner grew impatient
and decided that they should take over the first
floor apartment and wait there. R. 15190-200.

Willie McWilliams (“McWilliams”) occupied
the first-floor apartment on Avenue D with his girl-
friend and five-year-old son. When McWilliams
answered a knock on his back door, he was greeted
by a large-caliber automatic gun pointed at his
head. Petitioner announced that McWilliams was
“under arrest.” Monica, who was carrying a smaller
firearm and Victor, who was not armed, followed
petitioner inside. Petitioner hit McWilliams in the
head with his weapon and forced him to the floor,
instructing Victor to handcuff him. Petitioner then
pul one foot on the back of McWilliams's neck and
pulled his head back to expose his throat to the
blade of a knife that had been taken from the kit-
chen. The First slash was diverted, apparently by a
necklace the victim was wearing, so petitioner cut
McWilliams a second time from ear to ear. Anticip-
ating that he was soon going to die, McWilliams,
still handcuffed, reared up and "head-butted” peti-
tioner. At this point petitioner withdrew and headed
toward the living room, but McWilliams pursued
him. The handcuffs had eventually came loose, and
petitioner fired multiple shots while McWilliams
charged at petitioner. Monica, meanwhile, pointed
her gun at McWilliams’s son, Q.J., but had prob-
lems firing the gun due to the gloves she was wear-
ing. McWilliams's girlfriend had since escaped the
house to call 911. When petitioner heard the sound
of approaching sirens, he fled, leaving Monica to
struggle with McWilliams. R. 14269-73, 14277-80,
14351,15191-201.

© 201 1 Thomson Reuters. No Claim to Orig, US Gov. Works.

1262

Page 5

Slip Copy, 2009 WL 3273878 (W.D.N.Y.)
(Cite as: 2009 WL 3273878 (W.D.N.Y.))

*5 Despite being shot, McWilliams succeeded
in knocking over Monica, who turned the gun on
herself, lamenting that she and her companions “hit
the wrong apartment.” She asked McWilliams to
kill her: “You already took my husband out,”
(petitioner was ultimately found to have suffered a
minor gunshot wound in the exchange). McWilli-
ams, who was seriously wounded and still thinking
he was going to die, refused and insisted that she
remain alive to bear witness. Monica handed
the gun over to five-year-old Q.J., asking the child
to shoot her, end McWilliams again intervened.
Moments later, police arrived and apprehended
Monica, R. 14280-84, 14383, 15800.

FN5. In addition to having his throat cut,
McWilliams sustained stab wounds to his
jaw, gunshot wounds to his shoulder, back,
and foot, and his teeth were knocked out
during the skirmish. R. 14352-56.

C* Petitioner’s Arrest and Interrogation

After questioning Monica, Rochester police
contacted security personnel at Marine Midland
bank and asked to be notified if petitioner showed
up. At approximately 4:45p.m., petitioner arrived in
the passenger seat of a car as it drove up to the tell-
er window at the Lycll Avenue branch. The vehicle
was driven by his mother, and in the back seat were
Victor and two other men variously described as
half-brothers or cousins. Rochester police convened
at the bank and ordered everyone out of the car As
petitioner complied, a cream-colored pistol fell
from his waist. The .380 caliber semi-automatic
gun was later found to have fired three of the bul-
lets found at McWilliams home on Avenue D.R.
14519-22, 14526-30, 14549-55, 14562-64, 14578,
14580-85, 14825, 15256-57, 15293, 15738-39.

Petitioner was taken to the Rochester Public
Safety Building to await investigators. Before any
investigators arrived, he announced to the officer
guarding him, “Give me the D A. and I'll tell him
everything. I only want to talk with the head man.”
Investigator Sheridan and Sergeant John Gropp
(“Gropp”) walked into the interview room at ap-

proximately 5:45pm and introduced themselves. Pe-
titioner initially demanded that his family be re-
leased before he would discuss any of the crimes.
Sheridan responded that he would first have to
know more about what crimes petitioner was offer-
ing to discuss. Sheridan then read petitioner his
Miranda rights, which petitioner waived. R,
14635-42, 14820-21, 15026.

After approximately 45 minutes, petitioner
offered to discuss Johvanny, a name that Sheridan
recognized. Sheridan knew that a man named Joati-
gel Toro was killed along with Johvanny Diaz, so
he asked petitioner whether he was responsible for
killing Johvanny. Petitioner answered "yes,” and
said that he would talk about it, along with “some
others" but again insisted that his family be re-
leased. Sheridan ignored petitioner's request, and
continued to question him regarding the other hom-
icides. Petitioner eventually told Sheridan that he
killed a man near a. milk plant on Lake Avenue, and
another person on Sherer Street. Although petition-
er still wanted “something for his family in return,”
for this information, investigators promised him
nothing. R, 14821-24.

*6 Sheridan noticed that petitioner had a limp
and was wearing a white gauze bandage on his leg.
Petitioner attributed the injury to the incident at the
Avenue D apartment earlier that morning, but did
not describe the event in detail. Sheridan asked if
petitioner wanted to have the wound treated at the
hospital, but petitioner denied the offer and stated
that he “want[ed] to get this cleared up.” R.
14643-47.

Sheridan and Gropp left the interview room for
about thirty minutes, and returned to inform peti-
tioner that everyone who was arrested at Marine
Midland bank faced charges for the gun that was re-
covered at the scene of the arrest. Petitioner insisted
that the others were not responsible, the gun was
bis alone, and repeated that he wanted his family
released. Sheridan then pointed out that Monica had
been arrested at the apartment of Willie McWilli-
ams earlier in the day and was facing very serious

&2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1263

Page 6

Slip Copy, 2009 WL 3273878 (W.D.N.Y.)
(Cite as: 2009 WL 3273878 (W.D.N.Y.))

charges and “wasn't going anywhere,” Petitioner
then became “very upset” after learning the police
had reason to believe that Victor was also involved
in the incident. He angrily asserted that only peti-
tioner and Monica entered the apartment armed
with guns, and that Victor merely waited outside
until after the shooting, at which point he “came in
only to aid [petitioner],” Sheridan advised petition-
er that although Monica and Victor were not going
to be released, the rest of his family would not be
charged with possession of the gun: *‘[W]c have
met your demands, so to speak; start at the begin-
ning and tell us those homicides.” Petitioner began
to discuss the four murders. R. 14826-28,
14830-31.

Petitioner discussed the killing of Johvanny
Diaz, and related that he and another man, whom he
eventually acknowledged as his cousin Moncho,
were hired by a drug dealer to shoot Johvanny in
the knees and take his money. Johvanny was in debt
to the drug dealer, who contracted petitioner and
Moncho to “embarrass” Johvanny, but not kill him.
Petitioner acknowledged that the pair “changed the
plan a little bit.” After Johvanny refused to sell
them cocaine, petitioner and Moncho confronted
Johvanny and his companion, Joangcl, at a pay
phone. Petitioner grew frustrated trying to breathe
behind the nylon mask so he pulled it off. As he did
so, Moncho shot Johvanny in the face. When Joan-
gel looked toward petitioner, he started shooting
too. “The booms kept coming” and soon both vic-
tims were left dead or dying from multiple gunshot
wounds. R. 14831-36, 14851-53.

Petitioner then turned to the killing of Peter
Holley, who was shot near a milk plant. The murder
occurred after Jimmy Mateo was robbed of a bi-
cycle and gold chain "by a black dude who had a
knife Petitioner thereupon retrieved his aunt's .12
gauge shotgun and he and Jimmy drove around the
neighborhood until they spotted the bicycle on a
street corner. Nearby, a man was starting to get into
a car. Jimmy identified the thief, and petitioner told
the investigator that “I shot him in the head.” R.

14836-37, 14855-56.

*7 Next petitioner gruesomely described the
kidnapping and murder of Juan Rodriguez -Mil to s to
investigators, proclaiming that he "wanted the death
penalty” for the crime because “Pm a king and I
can't do a hundred years in jail,” Before he would
consent to signing the typed version of any of the
confessions, he insisted on calling bis mother to
confirm that she had been released. Investigators
made arrangements for that phone call, and the con-
fessions were subsequently typed and signed. R.
14645-76, 14838, 14848-49.

Finally, at approximately l:35a,m., Gropp
questioned petitioner and obtained similarly expli-
cit confessions about the two incidents at Avenue
D, including the one earlier that day involving
McWilliams. Aside from noting his leg injury was
sustained while grappling with McWilliams, (“I felt
something hit me in the right leg. I don't know if
Monica shot or what”) the only thing that his con-
fession added to McWilliams testimony was the ac-
knowledgment that this hostage-taking was the
product of his desire to “find my girlfriend .. or find
out if they could get here there.” He professed, “All
this shit over the love of a woman.” R. 14849,
15189-200, 15211.

D. Petitioner's Appeals

The capital case and attendant convictions were
appealed directly to the New York Court of Ap-
peals, which affirmed the conviction but reversed
the sentence of death. People v, Mateo, 2
N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053,
cert, denied 542 U.S. 946, 124 S.Ct. 2929, 159
L.Ed,2d 828 (2004); see Appx. E. Petitioner was re-
sentenced on his first degree murder conviction on
August 18, 2004, to life imprisonment without pa-
role. See Resp't Answer ^ 7. (Docket No. 4), On
September 9, 2004, petitioner's attorney filed a No-
tice of Appeal from the judgment of conviction and
the sentence, and that appeal is still pending in state
court. See Resp't Answer Tj 9; Appx. G. Despite the
inclusive language in petitioner’s Notice, further ap-
peal lies only from the re-sentence and not from

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1264

Page 7

Slip Copy, 2009 WL 3273578 (W.D.N.Y.)
(Cite as: 2009 WL 3273878 (WJXN.Y,))

any alleged errors committed at or before trial. See,
e.g. People v, Ryder, 239 A.D.2<I 364, 657
N,Y,$.2d 998 (2d Dept.1997) lv. denied, 90 N.Y.2d
910, 663 N,Y.S.2d 522, 686 N.E.2d 234. As such,
petitioner's conviction is final for purposes of
habeas review, and the issues raised in the instant
petition are unrelated to the re-sentencing.

FN6. Citing its previous decisions in
Hynes v, Tomei, 92 N.Y,2d 613, 684
N.Y.S.2d 177, 706 N.E.2d 1201 (1998)
and People v. Harris, 98 N„Y.2d 452, 749
N.Y.S.24 766, 779 N.E.2d 705 (2002)
holding New York's death penalty statute
unconstitutional, the Court of Appeals
struck the death notice and limited peti-
tioner's sentence to life without parole
upon re-conviction.

Petitioner's non-capital case was appealed to
the Appellate Division, Fourth Department, which
affirmed all convictions. People v. Mateo, 11
A.D.3d 984, 782 N.Y.S,2d 233 (4th Dcpt.2004);
Appx. L. Leave to appeal this decision was denied
by the New York Court of Appeals. 3 N Y. 3d 758,
788 N.Y.S.2d 675, 821 N,E.2d 980 (2004).

111. Discussion

A. General Principles Applicable to Federal
Habeas Review

1. Standard of Review

To prevail under 28 U.S.C. § 2254, as amended
in 1996, a petitioner seeking federal review of his
conviction must demonstrate that the state court's
adjudication of his federal constitutional claim res-
ulted in a decision that was contrary to or involved
an unreasonable application of clearly established
Supreme Court precedent, or resulted in a decision
that was based on an unreasonable factual determ-
ination in light of the evidence presented in state
court. See 28 U.S.C. § 2254(d)(1), (2); Williams v.
Taylor, 529 U.S. 362, 375-76, 120 S.Ct 1495, 146
L.Ed.2d 389 (2000).

*8 A stale court decision is based on an
“unreasonable application” of Supreme Court pre-
cedent if it correctly identified the governing legal
rule, but applied it in an unreasonable manner to the
facts of a particular case. Williams, 529 U.S. at
413. The inquiry for a federal habeas court is not
whether the state court’s application of the govern-
ing law was erroneous or incorrect, but rather
whether it was "objectively unreasonable.” See id
at 408-10; see also Eze v. Serikowski, 321 F.3d 1 10,
125 (2d Cir.2003). Under the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”), "a de-
termination of a factual issue made by a State court
shall be presumed to be correct. The [petitioner]
shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner,
337 F.3d 175, 181 (2d Cir.) (“The presumption of
correctness is particularly important when review-
ing the trial court's assessment of witness credibil-
ity.”), cert, denied sub nom. Parsad v. Fischer, 540
US. 1091, 124 S.Ct. 962, 157 L.Ed.2d 798 (2003).

2, Exhaustion Requirement and Procedural Bar

"An application for a writ of habeas corpus on
behalf of a person in custody pursuant to a judg-
ment of a State court shall not be granted unless it
appears that ... the applicant has exhausted the rem-
edies available in the courts of the State...” 28
U.S.C. § 2254(b)OXA); see, e.g., O'Sullivan v. Bo-
erckel, 526 U.S. 838, 843-44, 119 S.Ct. 1728, 144
L.Ed,2d 1 (1999); accord, e.g., B asset l v. Walker.
41 F.3d 825, 828 (2d Cir. 1994), cert, denied 514
U.S, 1054, 115 S.Ct. 1436, 131 L.Ed.2d316 (1995)
, “The exhaustion requirement is not satisfied un-
less the federal claim has been ‘fairly presented’ to
the state courts.” Dayc v. Attorney General, 696
F.2d 186, 191 (2d Cir. 1 982) {en banc ), cert,
denied. 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d
184 (1984). “The exhaustion requirement is prin-
cipally designed to protect tire state courts' role in
the enforcement of federal law and prevent disrup-
tion of state judicial proceedings, and is not satis-
fied unless the federal claim has been 'fairly
presented* to the state courts.” Jimenez v. Walker,

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1265

Page 8

Slip Copy, 2009 WL 3273878 (W.D.N.Y.)

(Cite as: 2009 WL 3273878 (W.D.N.Y.))

458 F.3d 130, 148-149 (2d Cii.2006) (internal cita-
tions and quotation marks omitted).

“For exhaustion purposes, a federal habeas
court need not require that a federal claim be
presented to a state court if it is clear that the state
court would hold the claim procedurally barred.”
Reyes v. Keane, 118 F.3d 136, 139 (2d Cir.1997)
(quotations omitted), “In such a case, a petitioner
no longer has ‘remedies available in the courts of
the State’ within the meaning of 28 U.S.C. §
2254(b).’* Grey v. Hoke , 933 F.2d 117, 120 (2d
Cir.1991). Consequently, such procedurally barred
claims are “deemed exhausted” by the federal
courts. Eg., Grey, 933 F.2d at 120-21; Reyes v.
Keane, U8F.3dat 139.

For a procedurally defaulted claim to be heard
on habeas review, “the petitioner must show cause
for the default and prejudice, or demonstrate that
failure to consider the claim will result in a miscar-
riage of justice (i.e., the petitioner is actually inno-
cent).” Aparicio v, Artuz, 269 F.3d 78, 90 (2d
Cir.2001) (citing Coleman v. Thompson, 501 U.S.
722, 748-50, 111 S.Ct. 2546, 115 L.Ed.2d 640
(1991)).

B. Merits of the Petition
I. Involuntary Confession

*9 Petitioner claims, as to both cases, that his
confessions were involuntary, induced by police
promises that his family would be released and
charges against his brother would be “limited to
minor offenses”. Pet. ^ 12(a). (Docket No. 1), This
is his sole claim for habeas relief. He raised the is-
sue in his direct appeal from the capital conviction.
In that case, the Court of Appeals determined: “On
this record, there is no evidence that defendant’s
will was overborne or his capacity for self-
determination impaired, and every indication that
he spontaneously, aggressively and voluntarily con-
fessed to suit his own purposes.” People v. Mateo,
2 N.Y.3d 383, 416, 779 N.Y.S,2d 399, 81 1 N,E.2d
1053 (2004); Appx. E.

Respondent contends that the voluntariness is-
sue was not raised on the non-capital appeal and is
thus unexhausted and procedurally defaulted. In a
letter to the Appellate Division, petitioner's appel-
late counsel requested that the court preserve the is-
sue for the purpose of future federal litigation, but
acknowledged he did not brief the claim on appeal.
FN7 See Pet'r Reply, Ex. A. (Docket No. 7). The
Appellate Division held that the issue was not
timely raised, and that in any event, was without
merit. People v. Mateo , 11 A,D.3d 984, 782
N.Y.S.2d 233 (4th Dept.2004). The claim was also
not raised to the New York Court of Appeals, see,
Appx. M, and the Court agrees that the claim is
therefore unexhausted.

FN7. In his letter, appellate counsel ex-
plained that he did not brief the voluntari-
ness issue because the Court of Appeals
decision would require the Appellate Divi-
sion to reject it. Nevertheless, petitioner
wished to preserve his right to seek federal
habeas relief on the voluntariness of the
confession. Pet'r Reply, Ex. A.

With respect to the non-capita! conviction, pe-
titioner's unexhausted claim is procedurally defaul-
ted because petitioner has already used tbe one dir-
ect appeal to which he is entitled under New York
state law, and if he were to raise the claim in a
N.Y.Crim. Proc. Law § 440.10 motion to vacate the
judgment, it would be dismissed because it should
have been raised on direct appeal. See N.Y.Crim.
Proc. Law § 440.10(2)(c); N.Y. Court Rules §
500.10(a); Grey v. Hoke, 933 F.2d 117, 119-21 (2d
Cir.1991). Petitioner has not demonstrated cause
and prejudice to excuse the default, or that a funda-
mental miscarriage of justice would occur should
this habeas court decline to review the claim. Nev-
ertheless, petitioner is still entitled to a merits re-
view of his voluntariness claim pertaining to his
capital case because it has been properly exhausted,
and, in any event, the claim arises out of a single
interrogation and evidentiary hearing, and requires
the same analysis regardless of which conviction it

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1266

Page 9

Slip Copy, 2009 WL 3273878 (W.D.N.Y.)
(Cite as: 2009 WL 3273878 (W.D.N.Y.))

attaches to.

The "ultimate issue of voluntariness [of a con-
fession] is a legal question requiring independent
federal determination.” Nelson v. Walker, 121 F.3d
828, 833 (2d Cir.1997) (quoting Arizona v. Fulmin-
ate, 499 U.S. 279, 287, 111 S.Ct 1246, U3
L.Ed.2d 302 (1991)); see also Nova v. Bartlett, 21 1
F.3d 705, 707 (2d Cir.2000). “ ‘No single criterion
controls whether an accused's confession is volun-
tary: whether a confession was obtained by coer-
cion is determined only after careful evaluation of
the totality of the surrounding , circumstances.* "
Nelson, 121 F.3d at 833 (quoting Green v. Scully,
850 F.2d 894, 901 (2d Cir.), cert, denied, 488 U.S.
945, 109 S.Ct, 374, 102 L.Ed.2d 363 (1988)).
Factors to be considered include the accused's ex-
perience and education; the conditions of the inter-
rogation; and the conduct of law enforcement offi-
cials, notably, whether there was physical abuse,
the period of restraint in handcuffs, and use of psy-
chologically coercive tactics. Id. (citing Green. 850
F.2d at 901). “ ‘[Subsidiary questions, such as the
length and circumstances of [an] interrogation,’ " or
whether " ‘the police engaged in the intimidation
tactics alleged by the defendant,* arc entitled to the
presumption of correctness.” Id. (quoting Milter v.
Fento, 474 U.S. 104, 112, 117, 106 S.Ct. 445, 88
L,Ed.2d 405 (1985)); see also Towndrow v, Kelly ,
2000 WL 33743385, at *4 (N.D.N.Y. Dcc.2D,
2000) (factual findings relevant to the voluntariness
of a habeas petitioner's confession made by the
state court are entitled to the presumption of cor-
rectness, and a petitioner must rebut this presump-
tion by clear and convincing evidence) (citing 28
U.S.C. § 2254(e)(1)).

*10 A full evidentiary hearing was held before
the trial court concerning the issue of voluntariness
R. 8576-9055. Following that hearing, the court
made the following determinations:

[Defendant was properly advised of his Miranda
warnings and made a knowing, voluntary and in-
telligent waiver of those warnings before speak-
ing with the officers. During the ensuing hours of

interviews, the defendant made numerous inculp-
atory, spontaneous, oral and written statements to
the police concerning the events under investiga-
tion. There is no evidence that the police in any
way coerced statements made by the defendant,
nor induced them by any threats or promises, im-
plied or otherwise, concerning either the charges
in this case against the defendant or charges, real
or imagined, against his family. The People met
their burden in establishing the voluntariness of
the statements of the defendant.

R. 17307.

On appeal, the Court of Appeals analyzed the
issue in light of the Supreme Court's decisions in
Arizona v. Fulimante, 499 U.S. 279, III S.Ct.
1246, 113 L.Ed.2d 302 (1991) and Colorado v.
Connelly, 479 U.S. 157. 107 S.Ct. 515, 93 L.EcUd
473 (1986) r , and found ample evidentiary sup-
port for the hearing court's factual findings: "A re-
view of the circumstances here, moreover, shows
that the [petitioner's] confession was voluntary, and
that coercive police activity did not occur.” Mateo,
2 N.Y.3d at 414, 779 N.Y.S.2d 399, 811 N.E.2d
1053. This Court agrees.

FN8. Fulminate requires that the volun-
tariness of a confession must be reviewed
in totality of the circumstances. 499 U.S. ot
285-86. In Connelly, the Supreme Court
held that coercive police activity if a ne-
cessary predicate to the finding that a con-
fession is not voluntary within the meaning
of the Due Process Clause. 479 U.S. at 167

Petitioner initially expressed his willingness to
discuss the crimes when he demanded to speak
“with the head man,” referring to the District Attor-
ney. A few minutes later, petitioner shouted to an
investigator walking down the hall to send in the
detective handling his case while he still felt like
talking. As a result, investigators arrived and read
petitioner his Miranda rights, which he waived. Al-
though he insisted that his family be released as

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1267

Page 10

Slip Copy, 2009 WL 3273878 (W.D.N.Y.)
(Cite as: 2009 WL 3273878 (W.D.N.Y.))

precondition to discussing the homicides, petitioner
immediately began talking, starting with Johvanny.
Petitioner repeated again that he wanted his family
released, but went on to admit that he killed “a
black guy near the milk plant” [Peter Holley] and
then acknowledged that he had also killed Juan Ma-
tos. The record indicates that at no time did the in*
vestigators promise that Victor or petitioner's other
family members would receive leniency or be re-
leased. In fact, Sheridan specifically indicated to
petitioner that Victor would not be released due to
the nature of the crimes he was thought to be in-
volved in. After petitioner submitted that the gun
recovered at the scene of the arrest belonged to
him, Sheridan informed petitioner that his relatives
(those arrested at Marine Midland bank) had been
released. Contrary to petitioner’s assertion, this
does not amount to a quid pro quo and it does not
render involuntary petitioner’s subsequent elabora-
tion about the murders.

“As is obvious from the exchanges, [petitioner]
believed that he was in a position to influence the
release of his family, acting under a self- created
impulse to tell the police “everything” in order to
achieve his own objective.” Mateo, 2 N.Y.3d at
415, 779 N.Y.S.2d 399, 811 N,E.2d 1053. Petition-
er’s proclamation of being “a king” and his desire
for the death penalty supports the state court’s con-
clusion that he freely and vociferously rendered his
confessions. Even if the Court were to believe that
investigators allusively promised petitioner any-
thing, such conduct, standing alone, does not render
a confession involuntary. See Green v. Scully, 850
F,2d 894, 901 (2d Cir.1988) C[T]he presence of a
direct or implied promise of help or leniency alone
has not barred the admission of a confession where
(he totality of the circumstances indicates it was the
product of a free and independent decision.”), see
also Connelly, 479 U.S. at 164 n. 2 ("Even where
there is causal connection between police miscon-
duct and a defendant's confession, it does not auto-
matically follow that there has been a violation of
the Due Process Clause.”)

*11 Moreover, petitioner dees not allege phys-
ical abuse or misconduct by the investigators. He
was offered food, cigarettes, water, and medical
treatment. He was allowed meetings with Monica
and Victor, and was permitted a phone cal! to his
mother as per his requests to the police. It is clear
from the record that the investigators’ conduct was
not coercive and did not suppress petitioner’s free
will The New York Court of Appeals thus did not
unreasonably apply or render a decision contrary to
Fulmmante and Connelly. Because habeas relief
does not He for this ground, the petition for habeas
corpus is denied and the action is dismissed.

IV. Conclusion

For the reasons stated above, Angel Mateo’s
petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 is denied, and the petition is dis-
missed. Because the petitioner has failed to make a
"substantial showing of a denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), the Court declines
to issue a certificate of appealability. See, e g. Lu-
cidore v. New York State Div. of Parole, 209 F.3d
107, 111-113 (2d Cir.2000). The Court hereby cer-
tifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this judgment would not be taken in
good faith and therefore denies leave to appeal as a
poor person. Coppedge v. United States, 369 U.S.
438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

SO ORDERED.

W.D.N.Y.,2009,

Mateo v. Artus

Slip Copy, 2009 WL 3273878 (W.D.N.Y.)

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1268

Page 1

06957

Westiaw.

1 1 A.D.3d 984, 782 N.Y.S.2d 233, 2004 N Y Slip Op.
(Cite as: H A.D.3<1 984, 782 N.Y.S.2d 233)

H

Supreme Court, Appellate Division, Fourth Depart-
ment, New York.

PEOPLE of the State of New York, Plaintiff-
Respondent,
v,

Angel MATEO, Defendant-Appellant.

Oct. 1,2004.

*9B4 Appeal from a judgment of the Monroe
County Court (John J. Connell, J.), rendered
November 8, 1999. The judgment convicted de-
fendant, upon a jury verdict, of murder in the
second degree (five counts).

John E. Tyo, Shortsville, for defendant-appellant.

Michael C, Green, District Attorney, Rochester (
Wendy Evans Lehmann of counsel), for plaintiff-
respondent.

MEMORANDUM:

Defendant appeals from a judgment convicting
him following a jury trial of five counts of murder
in the second degree (Penal Law § 125.25(1], (3] ).
Contrary to the contention of defendant. County
Court did not abuse its discretion in denying his
severance motion. “[DJefendant failed to meet his
burden of establishing that he would be ‘unduly and
genuinely *985 prejudiced by the joint trial of the
(unrelated murder] charges* " (. People v, Lovett. 303
A.D.2d 952, 952, 755 N.Y.S.2d 906, h. denied 100
N.Y.2d 584, 764 N.Y.S.2d 394, 796 N.E.2d 486,
quoting People v. Brown, 254 A.D.2d 781 , 782, 680
N.Y.S.2d 328, !v. denied 92 N.Y.2d 1029, 684
N.Y.S,2d 494, 707 N.E.2d 449). Defendant failed to
preserve for our review his further contention that
the court's instructions concerning the separate
counts were inadequate (see CPL 470.05(2] ) and,
in any event, that contention lacks merit (see gener-
ally People v. Canty, 60 N,Y,2d 830, 831-832, 469
N,Y.S.2d 693, 457 N.E.2d 800). Even assuming, ar-
guendo, that the challenge by defendant to the vol-

untariness of bis confession was timely raised, we
nevertheless conclude that it is without merit (see
generally People v. Mateo, 2 N.Y,3d 383, 413-414,
779 RY,S.2d 399, 811 N.E.2d 1053, cert, denied -
- U.S. — , 124 S.Ct 2929, 159 L,Ed.2d 82S). Fi-
nally, by challenging the voluntariness of the con-
fession, defendant opened the door to the admission
of the full confession (see id. at 416-417, 779
N.Y,S.2d 399, 81 1 N.E.2d 1053).

It is hereby ORDERED that the judgment so
appealed from be and the same hereby is unanim-
ously affirmed.

PINE, J.P., SCUDDER, KEHOE, MARTOCHE,
and LAWTON, JJ,, concur.

N.Y.A.D. 4 Dept. 2004.

People v. Mateo

II A.D.3d 984, 782 N.Y.S.2d 233, 2004 RY. Slip
Op. 06957

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1269

Westi'aw.

Page i

Not Reported in N.Y.S.2d, 1999 WL 33313140 (N.Y.Co.Ct.), 1999 N.Y. Slip Op. *tC006(U) ; ,

(Cite as: 1999 WL 33313140 (N.Y.Co.Ct,))

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK COUNTY COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK
v.

JOHN OWENS, Defendant.

Ind. #547/99, Ind. #414/99
DATED: November 22, 1999, Rochester, New
York

On Behalf of the People MICHAEL GREEN, ESQ.
Assistant District Attorney

On Behalf of the Defendant: MICHAEL M. MUR-
RAY, ESQ. PETER PULLANO, ESQ. Capital De-
fenders for the Defendant

EGAN, J.;

*1 This is a potential death penalty ease. In two
separate indictments, Defendant John Owens is
charged with two counts of Murder in the First De-
gree, three counts of Murder in the Second Degree,
and three counts of Rape in the First Degree. The
District Attorney’s office has not yet decided
whether to file a Notice of Intent to Seek the Death
Penalty pursuant to CPL §250.40.

The People seek an Older from the Court pur-
suant to CPL §200.20(4) consolidating Indietment
No. 547/99 and Indictment No. 414/99. The seeond
and fourth counts of Indictment No. 547/99, and the
sole count in Indictment No. 414/99 allege that the
Defendant caused the death of Sherry Tuthili by
striking, choking and/or asphyxiating her sometime
between May 30 and June 1, 1999, in violation of
Penal Code Sections I25.27(l)(a)(vii) and (b).

125.25(1) and 125.25(2), respectively.

The offenses in the indictments are joinable un-
der CPL §200.20 (2)(a) sinee they arc based upon
the same act or criminal transaction as defined in
CPL §40.10. Id. In the absenee of “a showing of
good eause to the contrary," this Court must order
consolidation and treat them as a single indietment
for trial purposes. CPL §200.20(5).

Defendant has failed to show good eause why
the indictments should be tried separately. CPL
§200.20 (3). Defendant has not established that
there is substantially more proof against him on one
set of eharges, and that a jury likely would be un-
able to consider separately the proof as it relates to
eaeh offense. CPL §200.20 (3)(a); people v. Ro-
gers, 245 AD 2d 1041 (4 th Dept. 1997). Nor has the
Defendant shown that he has “both important testi-
mony to give concerning one [offense] and a genu-
ine need to refrain from testifying on the other."
CPL §200.20 (3) (b); People v Lane, 56 NY2d 1, 5
(1982).

The People's motion <r» consolidate is hereby
granted, without prejudice to Defendant's right to
move for separate trial of counts at a later date.

This shall constitute the Opinion, Decision and
Order of the Court.

ZYNY

People v. Owens

Not Reported in N.Y.S.2d, 1999 WL 33313140
(N.Y.Co.Ct.), 1999 N.Y. Slip Op. 4000G(U)

END OF DOCUMENT

© 20 1 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1270

Pags.l

99574

Westi'aw.

182 Misc.2d 828, 701 N.Y.S.2d 604, 1999 N Y, Slip Op.
(Cite as: 182 Mlsc,2d 828, 701 N.Y.S.2d 604)

U

County Court, Monroe County, New York.

The PEOPLE of the State of New York, Plaintiff,
v.

John OWENS, Defendant.

Nov. 22, 1999.

Defendant, who was charged with two counts
each of first-degree and seeond-degree murder,
and three counts of first-degree rape, moved to have
the records of any jail visits seated and their confid-
entiality maintained, The County Court, Monroe
County, David D. Egan, J., held that county court
lacked jurisdiction to grant requested relief.

Motion denied.

West Ileadnotes

[11 Costs 102 €=>285

102 Costs

102X1V In Criminal Prosecutions

102k2B5 k, Constitutional and Statutory Pro-
visions. Most Cited Cases

Intent of statute permitting a defendant in a
capital ease to apply ex parte for the court's author-
ization of county funding for the cost of investigat-
ive, expert or other services is to prevent the dis-
closure of a defendant's trial strategy. McKinney's
Judiciary Law § 35-b, snbd. B.

|2[ Records 326 €=32

326 Records

326II Public Access
32611(A) In General

326k32 k. Court Records. Most Cited

Cases

As court of limited jurisdiction, eounty eourt
lacked jurisdiction to seal records of any jail visits
with defendant charged with capital crimes.
McKinney's Const, Art. 6, § 11,

[3) Mandamus 250 €=141
250 Mandamus

250111 Jurisdiction, Proceedings, and Relief
250k 141 k. Jurisdiction and Authority, Most
Cited Cases

Prohibition 314 €^=>16

314 Prohibition
31411 Procedure

3 1 4k 16 k. Jurisdiction or Authority to Issue.
Most Cited Cases

Only a State Supreme Court, through an article
78 proceeding, may issue a mandamus or a prohibi-
tion directing the procedures of a local law enforce-
ment ageney. McKinney's CPLR 7801 et seq.

**605 *828 Michael M. Murray, New York City,
and Peter Pullano, Rochester, for defendant.

Howard R. Refill, Distriet Attorney of Monroe
County (Michael Green of counsel), for plaintiff.

DAVID D. EGAN, J.

This is a potential death penalty case. Defend-
ant John Owens is charged with two eouuts of
Murder in the First Degree, two counts of Murder
in the Second Degree, and three counts of Rape in
the First Degree. The District Attorney’s office has
not *829 yet decided whether to file a Notice of In-
tent To Seek The Death Penalty pursuant to CPL §
250,40. With no bail request made to date, Defend-
ant is currently being held in the Monroe County
Jail awaiting his trial.

Under the veil of heightened due process that
Defendant alleges should be afforded all capital
murder eases, Defendant seeks to have the records
of any jail visits “sealed and their confidentiality
maintained.” Specifically the defense is concerned
that the prosecution will learn of the names of De-
fendant’s professional visitors, and the lengths of
their visits. Defendant argues that the District At-

©201 1 Thomson Reuters. No Claim to Orig. US Gov, Works.

1271

Page 2

905 -4

182 Mise,2d 828, 701 N.Y.S.2d 604, 19^ N.Y. Slip Op.
(Cite as? I 82 Mfc?c.2d 828, 70 1 N.Y.SJ* oo4)

torncy's access to such records would give the pro-
secution a “clear window into defense strategy and
preparations.”

[I] In support of his claim. Defendant cites
People v. Irwin and People v. Banker, County Ct.,
Sullivan County, Mar. II, 1999, LaBuda, J. (see,
Spencer, Rare Motion to Close Hearings in Death
Penalty Pretrial Fails, NYU, Mar. 15, 1999, at 1,
col. 4.), wherein the Sullivan County Court granted
a similar request for such non-disclosure finding
that it was “consistent with the confidentiality man-
dated” by Judieiary Law § 35-b(8). Judiciary 1-aw §
35-b(8) permits a defendant in a capital case to ap-
ply ex parte for the eourt's authorization of county
funding for the cost of “investigative, expert or oth-
er” services. Id. The clear intent of the statute is to
prevent the disclosure of a defendant's trial strategy
by ensuring that the court's determination of wheth-
er the proposed investigative and expert expendit-
ures are reasonably necessary to the defense are
conducted ex parte.

[2j[3] This Court laeks jurisdiction to grant
such relief. County Court is a court of limited juris-
diction created by Article VI, Section 11 of our
state constitution. Only a State Supreme Court
through a CPLR Article 78 proceeding may issue a
mandamus or a prohibition directing the procedures
of a local law enforcement agency. People v. Santi-
ago. 181 Misc.2d 641, 694 N.Y.S.2d 901 (Mon.
Cty. Ct. [Bristol, J.J 1 999); cf. Matter of Hennexsy,
67 AX>.2d 1089, 1090, 415 N.Y,S.2d 163 <4th
Dept. 1979).

Even if this Court was vested with such author-
ity, it is not convinced that the disclosure of the jail
logs would give the proseeution a taetical advant-
age. Unlike a Judieiary Law § 35-b(8) proceeding
where a capital defendant is compelled to justify his
need for funding for expert and investigative ser-
vices, the disclosure of his jail visitors’ names does
not hold the potential to reveal privileged commu-
nications. In faet under CPL § 240.30(2) the De-
fendant ultimately will be required to *830 disclose
to the proseeution the names of hts experts. Other

safeguards are in place, including sanctions and
remedies at trial, to ensure that the prosecution does
not misuse such information in the interim. People
v. Hall, 179 Misc.2d 488, 496, 686 N.Y.S.2d 551
(Sup.Ct. Monroe Co. [Mark, J ] 1998), citing
People v. Riggins. 178 Misc.2d 12, 20-23, 678
N.Y.S.2d 469 ( Monroe Cty.CU998); **606
People v. H'armvs, 148 Misc.2d 374, 380-84, 561
N.Y,S,2d 111 (Westchester Cty.Ct, 1990).

The Defendant's motion is therefore denied.

N.Y.Co.Ct.,1999,

People v. Owens

182 Misc.2d 828, 701 N.Y.S.2d 604, 1999 N.Y.
Slip Op. 99574

END OF DOCUMENT

O 2011 Thomson Reuters, No Claim to Grig. US Gov. Works.

1272

Westlaw.

182 Misc.2d 794, 701 N Y.S.24 602, 1999 N Y. Slip Op. 99573
(Cite as: 182 Mist,2d 794, 701 N.Y,S.2d 602)

Page 1

County Court, Monroe County, New York.

The PEOPLE of the Stale of New York, Plaintiff,

v,

John OWENS, Defendant,

Nov. 22, 3999.

Defendant in potential death penalty ease
sought order allowing him to apply ex parte and un-
der seal for judicial subpoenas duces tecum directed
to public agencies, through which defendant sought
to obtain information for use both in dissuading
prosecutor from seeking death penalty, and to pre-
pare for mitigation in sentencing phase in event he
was found guilty. The Monroe County Court, Dav-
id D* Egan, J., held that defendant could not apply
cx parte for such subpoenas.

Motion denied.

West Headnotes

ill Witnesses 410 €=>16

410 Witnesses
4101 In General

410kl6 k. Subpoena Duces Tecum. Most
Cited Cases

There is a general presumption that ex parte ap-
plications for judicial subpoenas duces tecum are
improper. MeKirmey's CPLR 2307; N.Y.Ct. Rules,
§ 100.3(B)(6).

[21 Costs 102 €=>302

102 Costs

102XIV In Criminal Prosecutions

102k301.I Security for Payment; Proceed-
ings in Forma Pauperis

102k302 k. In General. Most Cited Cases

Costs 102 €=>302.2(2)

102 Costs

102XIV In Criminal Prosecutions

102k301.I Security for Payment; Proceed-
ings in Forma Pauperis

102k302,2 Production of Witnesses or

Evidence

I02k302.2(2) k. Expert Witnesses or
Assistance in General, Most Cited Cases

Costs 102 €=>302.3

102 Costs

102X1V In Criminal Prosecutions

102k30l.l Security for Payment; Proceed-
ings in Forma Pauperis

102k302.3 k. Investigative Assistance.
Most Cited Cases

Clear intent of statute authorizing defendant in
a capital case to apply ex parte for the court's au-
thorization of county binding for the cost of invest-
igative, expert, or other services is to prevent the
disclosure of a defendant's trial strategy by ensuring
that court's determination of whether the proposed
investigative and expert expenditures are reason-
ably necessary to the defense is conducted ex parte.
McKinney's Judiciary Law § 35-b, snbd. 8.

|3] Costs 102 €=>302.2(2)

102 Costs

102XIV In Criminal Prosecutions

I02k301.1 Security for Payment; Proceed-
ings in FoTma Pauperis

102k3O2.2 Production of Witnesses or

Evidenee

102k3O2.2(2) k. Expert Witnesses or
Assistance in General. Most Cited Cases

Where the assistance of an expert is needed to
prepare a defense, an indigent defendant has a con-
stitutional right to the services of that expert at state
expense, and a defendant's showing of need is to be
made ex parte.

[4] Witnesses 410 €=>16

410 Witnesses

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1273

Page 2

. 9957?

182 iv«ac.2d 794, 701 N.Y.S.2d 602, 1999 N.Y Op.
(Cite as: 182 Misc.2d 794, 707 N.Y.*.2»3 *v2)

4 1 01 In General

410kl6 k, Subpoena Duce*s Tecum. Most
Cited Cases

Defendant in potential death penalty case could
not apply ex parte and under seal for judicial sub-
poenas duces tecum directed to public agencies,
through which defendant sought to obtain informa-
tion for use both in dissuading prosecutor from
seeking death penalty and to prepare for mitigation
in sentencing phase in event he was found guilty.
McKinney’s CPL § 610.20, subd. 3; McKinney's
CPLR 2307.

**602*794 Miehael M. Murray, New York City,
and Peter Pullatio, Rochester, for Defendant.

Howard R. Re] in, District Attorney of Monroe
County (Michael Green of counsel), for plaintiff.

DAVID D. EGAN, J.

This is a potential death penalty case. Defend-
ant John Owens is charged with two counts of
Mnrdcr in the First Degree, two counts of Murder
in the Second Degree, and three counts of *795
Rape in the First Degree. The District Attorney's
Offtee has not yet decided whether to file a Notice
of Intent To Seek The Death Penalty pursuant to
CPL § 250.40.

Defendant requests an Order from this Court
allowing him to apply ex parte and under seal for
judicial subpoenas duces tecum directed to public
agencies. The defense intends to use the sub-
poenaed information both to dissuade the District
Attorney from seeking the death penalty and to pre-
pare for mitigation in the sentencing phase of trial
in the event defendant is found guilty. Defendant
argues that to put the prosecution on notice con-
cerning the documents it seeks to subpoena will un-
duly prejudice the defense by revealing its “strategy
and work-produet.”

The People maintain that such ex parte applica-
tions for judicial subpoenas duces **603 tecum
contravene CPL § 610.20(3) and CPLR § 2307.

CPL § 610.20(3) provides in pertinent part:
"[ajn attorney for a defendant may not issue a sub-
poena duces tecum of the court directed to any de-
partment, bureau or agency of the state or of a
political subdivision thereof. Such a subpoena
duces tecum may be issued in behalf of a defendant
upon order of a court pursuant to [CPLR § 2307] ”
CPL § 610.20(3) (emphasis added).

CPLR § 2307 provides that “unless the court
orders otherwise, a motion for such subpoena shall
be made on at least one day's notice to the library,
department, bureau or officer having custody of the
book, document or other thing and the adverse
party CPLR § 2307 (emphasis added).

Read together it is not clear whether these stat-
utes simply authorize a court to amend the timing
of a defendant's notice to an adverse party anchor
publie agency [ People v. Hall, 179 Misc.2d 488,
496, n. 13, 686 N.Y.S.2d 551 (Sup.Ct. Monroe Co.
[Mark, J,] 1998); People v. Santiago, unpublished,
slip op. at p. 3 (Mon. Cty. Ct. [Bristol, J.] July 8,
1999) J or allow the eourt to eliminate the notice re-
quirement altogether. People v. Van Dyne, 175
Misc.2d 558, 559, 669 N.Y.$.2d 199 (Mon.Cty.Ct.
[Marks, J.j 1998). The courts have dealt with this
inherent ambiguity differently. Id.

[1] Assuming this Court has the authority to
waive a defendant’s notice requirement under CPL
$ 610.20(3) and CPLR § 2307, this Court reeog-
nizes that there is a general presumption that ex
parte applications are improper. 22 NYCRR
100.3[B][6]; Kawasaki v. Kasting, 124 A.D.2d
1034, 508 N.Y.S.2d 762 (4th Dept. 1986); People v.
Van Dyne, supra. There also is a split of authority
on whether a defendant must adhere to the notice
requirement in a capital ease.

[2] [3j *796 Defendant not surprisingly relies
on People v, Mateo, 173 Mise.2d 70, 660 N,Y.S.2d
672 (Mon.Cty.Ct. [Marks, J.] 1998), People v. Van
Dyne, supra, and People v. Santiago, supra. In
People v. Mateo, supra, at 71, 660 N,Y.S.2d 672,
the eourt noted the practice of notifying the prosee-

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1274

Page 3

99573

182 Misc.2** 794, 70] N Y.S.2d692, I999.N.Y.
(Cite as; 182 Misc^d 794, 701 N.Y-S2d 602)

uiion was '"honored more in the brefach] than in the
observance in this county.” Finding sufficient au-
thority in Judiciary Law § 35-b{8) and Ake v. Ok-
lahoma, 470 U,S. 68. 86-87* 105 S.Ct. 1087, 84
FNl

L.Ed,2d 53 (1985) the eourt dispensed with the
requirement of notice to the adverse party. The
Mateo court authorized the defendant to submit ex
parte applications for subpoenaed documents,
which the court would review on an individual
basis and determine whether notice should be given
to the prosecution.

FNl. Judiciary Law § 35-b(8) permits a
defendant in a capital case to apply ex
parte for the couifs authorization of
county funding for the cost of
“investigative, expert or other” services.
The clear intent of the statute is to prevent
the disclosure of a defendant's trial strategy
by ensuring the court's determination of
whether the proposed investigative and ex-
pert expenditures arc reasonably necessary
to the defense are conducted ex parte. Sim-
ilarly in Ake v. Oklahoma, the United
States Supreme Court held that where the
assistance of an expert is needed to prepare
a defense, an indigent defendant has a con-
stitutional right to the services of that ex-
pert at state expense, and a defendant's
showing of need is to be made ex parte. Id.
at 86-87, 105 S.Ct. 1087, 84 L.Ed.2d 53.

The Van Dyne court granted the same relief.
However, the court emphasized the need for b de-
fendant to comport with the law regardless of local
practice, and “seek relief from the notice require-
ment by application.” People v. Van Dyne, supra, at
559, 669 N.Y.S.2d 199. The Van Dyne Court was
persuaded by the authorized use of ex parte applic-
ations in motions for severance “where the informa-
tion to support the grounds for severance relief
would require revelation of defense strategy ” Id,
at 559, 669 N,Y.S,2d 199, citing CPL §
200.20{3)<b)(H); People v. Lane, 56 N.Y.2d 1, 451
N,Y.S.2d 6, 436 N.E,2d 456 (1982). The Van Dyne

court noted that implicit in a defendant's due pro-
cess right to a fair opportunity to prepare a defense
**604 "is the right to gather information without
alerting the prosecution to the path of the defense.”
Id. at 559, 669N.Y.S^dl99.

Recently in People v. Santiago, supra the court
reached a similar result for a different reason. The
Santiago court was persuaded by civil practice
scholar David D. Siegel that the requirement for ju-
dicial subpoenas duces tecum in CPLR 2307 had
outlived its usefulness, since a court’s intervention
originally was required to prevent the potential ab-
uses posed by a party's access to original public re-
cords. Recent amendments to CPLR § 2307 now
permit a public agency to comply with the statute
by producing photostatic copies in place of origin-
als. The Santiago court thus held that the defense
need *797 only give notice to the prosecutor when
seeking to obtain original documents, not photostat-
ic copies, id. at 8, 451 N.Y,S.2d 6, 436 N.E.2d 456.

Notably, the Santiago court reached this con-
clusion despite its acknowledgment that a court’s
discretion under CPL § 610.20(3) and CPLR § 2307
extends only to the authority to amend the time
frame for notification to the adverse party, not to
the waiving of the notice requirement itself. Id at
3, 451 N.Y.S.2d 6. 436 N.E.2d 456. In contrast, in
People v. Hall, supra the court expressly rejected
defendant’s claim that heightened due process or
constitutional guarantees changed the notice re-
quirement of the statutes, and denied his applica-
tion.

[4] This Court is in accord with the Supreme
Court in People v. Hall, and declines to thrust itself
into the role of the legislature, but instead elects to
strictly construe CPL § 610.20(3) and CPLR § 2307

Also, this Court is not convinced that the de-
fense’s strategy would be compromised by the rev-
elation of Defendant's interest in public documents.
As the court aptly noted in People v. Cajigas, un-
published, slip op. at p. 16 (Westchester Cty, Ct,

€> 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1275

Page 4

182 Misc.id 'm, 701 N.Y.S.2d 602, 1999 M.Y, Slip Op. r m
(Cite as: 182 Misc.2d 794, 701 N. v - i fc02)

[Angiolillo, J.) Oct. 16, 1997) when addressing the
same issue, “[t]herc does not appear to be any great
tactical advantage in being aware of an adversary's
interest in public documents.” Cf. People v. Shut-
man, unpublished (Suffolk Cty. Ct [Pitts, J.] Oct.
16, 1997) (holding that a defendant does not have a
constitutional right to non-disclosure of mitigating
evidence, and the disclosure would not impair such
evidence).

The Defendant's motion is denied.

N.Y.Co.Ct.,1999,

People v. Owens

182 Misc.2d 794, 701 N.Y.S.2d 602, 1999 N.Y.
Slip Op. 99573

END OF DOCUMENT

Q 201 1 Thomson Reuters. No Claim to Orig, US Gov. Works.

1276

Westlaw,

Page 1

Not Reported in N,Y.S.2d, 1999 WL 333 13141 (N.Y.Co.Ct.), 1999 N.Y. Slip Op, 40007(U)

(Cite as: 1999 WL 33313141 (N/Y.Co.CL))

H

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK COUNTY COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK
v.

JOHN OWENS, Defendant.

Inch #547/99, Consolidated with Inti. #414/99
DATED; December 10, 1999, Rochester, New
York

On Behalf of the People; MICHAEL GREEN, ESQ.
Assistant District Attorney

On Behalf of the Defendant: MICHAEL M. MUR-
RAY, ESQ. PETER PULLANO, ESQ. Capital De-
fenders for the Defendant

EGAN, J.:

*1 This is a potential death peuaity case. De-
fendant John Owens is charged with two counts of
Murder in the First Degree, two counts of Murder
in the Second Degree, and three counts of Rape in
the First Degree. The District Attorney's Office has
not yet decided whether to file a Notice of Intent to
Seek the Death Penally pursuant to CPL §250.40.

At a pre-trial conference held before the Court
on October 8, 1 999, Defendant requested an exten-
sion of time to file pre-trial motions. Criminal Pro-
cedure Law §255.20 (1) provides in pertinent part
that: “all pre-trial motions shall be served or filed
within forty-five days after arraignment and before
commencement of trial, or within such additional
time as the court may fix upon application of the
defendant made prior to entry of judgment.” Id. The
People did not oppose Defendant's application.

Accordingly, all pre-trial motions shall be
made within sixty days of the filing of a Notice of
Intent to Seek the Death Penalty by the District At-
torney’s Office.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v. Owens

Not Reported in N.Y.S.2d, 1999 WL 33313141
(N.Y.Co.Ct.), 1999 N.Y. Slip Op. 4OQ07(U)

END OF DOCUMENT

© 2011 Thomson Reuters, No Claim to Orig. US Gov. Works.

1277

WesHaw,

Page l

183 Misc.2d 208, 703 N.Y.S2d 881,2000 N.Y. Slip Op. 20047
(Cite as: 183 Misc.2d 208, 703 N,Y.S.2d 881)

If

County Court, Monroe County, New York.

The PEOPLE of the Slate of New York, Plaintiff,
v.

John OWENS, Defendant
Dec. 17, 1999.

Defendant to potential death penalty case re-
quested subpoena allowing disclosure of pre-
sentence investigation reports prepared in connec-
tion with his prior criminal convictions, and State
sought similar access, The Monroe County Court,
David D. Egan, held that State and defendant
demonstrated legitimate basis for disclosure, and
thus would be allowed access to prior pre-sentence
investigation reports, but not to any sealed records
arising out of any youthful offender adjudication
afforded defendant.

So ordered.

West Headnotes

[1] Sentencing and Punishment 350H $>^293

350H Sentencing and Punishment

350HII Sentencing Proceedings in General
350HtI(E) Presentence Report
350Hk292 Disclosure of Report

3S0Hk293 k. In General. Most Cited

Cases

(Formerly 110k986.5)

Sentencing and Punishment 3S0H C^>294

350H Sentencing and Punishment

350HH Sentencing Proceedings in Genera!
3S0Hn(E) Presentence Report
35GHV292 Disclosure of Report

350Hk294 k. Disclosure to Defendant
Most Cited Cases

(Formerly IIOk986.5)

A pre-sentence report is confidential in nature

and unavailable to any person, including a criminal
defendant, unless specifically authorized by statute
or court order. McKinney’s CPL § 390.50.

|2] Sentencing and Punishment 35GH €^>293

35QH Sentencing and Punishment

350HII Sentencing Proceedings in Genera!
350Hn(E) Presentence Report
350Hk292 Disclosure of Report

350Hk293 k. In General. Most Cited

Cases

(Formerly i lGk986.5)

Statute provides for disclosure of a pie-
sentence investigation report for the limited pur-
poses of sentencing a defendant in a criminal case
for which the report was prepared, and for any ap-
peal arising out of that case; any other disclosure is
soundly within the discretion of court, and based
upon a requisite showing of need. McKiuney's CPL
§ 390.50, subd. 2(a).

[3] Sentencing and Punishment 3S0H C^>293

350H Sentencing and Punishment

350HTI Sentencing Proceedings in General
350HII(E) Presentence Report
350Hk292 Disclosure of Report

350Nk293 k. In General. Most Cited

Cases

(Formerly I J0k986.5)

Sentencing and Punishment 350H 0=294

350H Sentencing and Punishment

350HH Sentencing Proceedings in General
350HII{E) Presentence Report
350Hk292 Disclosure of Report

350Hk294 k. Disclosure to Defendant.
Most Cited Cases

(Formerly 1 1 0k986.5)

Sentencing and Punishment 350H £=>298
3 5 OH Sentencing and Punishment

© 201 1 Thomson Reuters, No Claim to Orig. US Gov. Works,

1278

Page 2

2004?

183 Misc,2d 208, 703 N.Y.S,3d 881, 2000 N,Y. Slip Op.
(Cite »s; 183 Mi sc. 2d 208, 703 N.Y.SJd 881)

350HII Sentencing Proceedings in General
350HII(B) Presen tenee Report
350Hk292 Disclosure of Report

350Hk298 k, Editing and Redaction.
Most Cited Cases

(Formerly 1 10k986,5)

Legitimate basis was demonstrated for disclos-
ure to both prosecution, and defendant in potential
death penalty case, of pre-sentence investigation re-
ports prepared in connection with defendant's prior
criminal convictions, as such reports would assist
prosecution in determining whether to seek death
penalty, and defendant in dissuading prosecution
from making such a determination; however, dis-
closure would not extend to scaled records arising
out of any youthful offender adjudication afforded
defendant. Me Kinney's CPL § 390.50.

**882*208 Michael M, Murray, New York City,
and Peter Pulfcmo, Rochester, for defendant.

Howard R. Reliu, District Attorney of Monroe
County (Miehacl Green ofeounsel), for plaintiff.

DAVID D, EGAN, J.

*209 This is a potential death penalty ease. De-
fendant John Owens is eharged with two counts of
Murder in the First Degree, three counts of
Murder in the Second Degree, and three counts of
Rape in the First Degree. The District Attorney's
office lias not yet decided whether to file a Notice
of Intent to Seek the Death Penalty pursuant to CPL
§ 250.40.

Defendant has asked this CouTt to sign a sub-
poena seeking the records of the Monroe County
Department of Probation, including pre-sentence
investigation reports prepared in connection with
Defendant’s prior criminal convictions. The defense
intends to use the pre-sentenee reports and other re-
cords both to dissuade the District Attorney from
seeking the death penalty and to prepare for mitiga-
tion in the sentencing phase of trial. The People do
not oppose Defendant's request, but rather ask this
Court for similar access to these reports.

Pursuant to Criminal Procedure Law §
39D.50 a pre-sentence report is confidential in
nature and unavailable to any person, including a
criminal defendant, unless specifically authorized
by statute or court order. Section 390.50(2)(a)
provides for disclosure of a pre-sentence investiga-
tion report for the limited purposes of sentencing a
defendant in a criminal case far which the report
was prepared, and for any appeal arising out of that
case. Any other disclosure is soundly within the
discretion of the Court, and based upon a requisite
showing of need.

[3] This Court is mindful that the Fourth De-
partment has held that CPL § 390.50 “docs not au-
thorize disclosure of a presentence report in a col-
lateral proceeding discrete from the proceeding for
which the report was originally prepared.” Sala-
rnmte v. Monroe County Department of Probation ,
136 A.D.2d 967, 524 N.Y.S.2d 943 (4th DepU988)
. Nonetheless the Court finds that both the People
and the defense have demonstrated a legitimate
basis for disclosure of any prc-sentence investiga-
tion report, namely, to assist the District Attorney
in determining whether to seek the death penalty,
and the defense in dissuading the District Attorney
from making such a determination. Accordingly,
any pre-sentence report shall be disclosed to the de-
fense and the People. Disclosure shall not extend,
however, to sealed records arising out of any youth-
ful offender adjudication afforded the Defendant.
Id; **883 People v. Whitehurst, 167 Mise.2d 383,
386, 640 N.Y.S.2d 409 (Sup.Ct. Queens Cty.1996).

N.Y.Co.Ct.,1999.

People v. Owens

183 Misc.2d 208, 703 N.Y.S.2d 881, 2000 N.Y.
Slip Op. 20047

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works,

1279

Westiaw,

Page 1

184 Misc.2d 597, 71 1 N.Y.S.2d 884, 2000 N.Y. Slip Op. 20306
(Cite ns; 184 Misc.2d 597, 711 N.Y.S.2J 884)

[2j Criminal Law 110 €±=*2 7.9(2. 1)

County Court, Monroe County, New York,

The PEOPLE of the State of New York, Plaintiff,
v.

John OWENS, Defendant
April 19, 2000.

Defendant who was charged in indictment with
capital murder filed motion seeking release of
minutes of grand jury proceedings, and order com-
pelling prosecutor to respond to interrogatories re-
garding grand jury proceedings, in anticipation of a
subsequent motion to dismiss. The County Court,
Monroe County, David D. Egan, J., held that de-
fendant was not entitled to disclosure of grand jury
minutes, as in camera inspection of minutes indic-
ated that sufficient evidence was presented to sup-
port indictment, and that proceeding was not de-
fective.

Motion granted in part and denied in part.

West Ileadnotes
[1] Grand Jury 193 €=>41.50(5)

193 Grand Jury

193k41 Seerecy as to Proceedings
193k41 .50 Permitting Disclosure

1 93k4 1.50(5) k. Necessity; Use in or Con-
nection with Judicial Proceeding. Most Cited Cases

Defendant who had been indicted on capital
murder charges was not entitled to release of grand
jury minutes, in anticipation of a future motion to
dismiss, where in camera inspection of grand jury
minutes indicated that sufficient evidenee was
presented to support indictment, that legal instruc-
tions to grand jury were properly recorded and leg-
ally sufficient, and that proceeding was not defect-
ive, charges in indictment were straightforward and
posed no novel legal concepts, and there was no
Brady material in minutes. McKinney’s CPL §§
190,25, subd. 4(a), 210.30.

1 1 0 Criminal Law
110XX Trial

1 10XX(A) Preliminary Proceedings

I10k627.9 Grand Jury Proceedings; Dis-
closure

1 10k627.9(2) Grounds for Disclosure

or Inspection

110k627. 9(2.1) k. In General. Most

Cited Cases

Grand Jury 193 €^^41.50(4)

193 Grand Jury

193k4l Secrecy as to Proceedings
193k4i.50 Permitting Disclosure

1 93 k4 1.50(4) k. Grounds or Objections in
General. Most Cited Cases

Defendant who had been indicted on capital
murder eharges was not entitled to order compel-
ling prosecutor to respond to interrogatories relat-
ing to grand jury proceedings and indictment,
where in camera inspection of grand jury minutes
indicated that sufficient evidence was presented to
support indictment, that legal instructions to grand
jury were properly recorded and legally sufficient,
and that proceeding was not defective, charges in
indictment were straightforward and posed no novel
legal concepts, and there was no Brady material in
minutes. McKinney's CPL §§ 190.25, subd. 4(a),
210.30.

|3] Grand Jury 193 €=^4 1.50(4)

193 Grand Jury

I93k4 1 Secrecy as to Proceedings
I93k41.50 Permitting Disclosure

1 93 k4 1.50(4) k. Grounds or Objections in
General. Most Cited Cases

Potential penalty in a capital case does not war-
rant disclosure of grand jury minutes.

**884*597 D. Michael Murray and Peter J. Puilano
Rochester, for defendant.

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1280

Page 2

1 84 Misc,2d 597, 71 1 N.Y.S.2d 884, 2000 N.Y. Slip Op. 2- 306
( Cite as: 184 Mis c. 2d 597, 711 N.Y,S.2d 884)

Howard R. Relin, District Attorney of Monroe
County (Michael Green of counsel), for piaindFf

DAVID D. EGAN, 1

This is a death penalty case. Defendant John
Owens is *598 charged with two counts of Murder
in the First Degree, three counts of Murder in the
Second Degree, and three counts of Rape in the
First Degree, The District Attorney’s office filed a
Notice of Intent To Seek The Death Penalty pursu-
ant to CPL § 250.40 on January 24, 2000, With no
bail request made to date, Defendant is currently
being held in the Monroe County Jail awaiting bis
trial.

Anticipating a future motion to dismiss, De-
fendant requests that this Court inspect and release
the stenographic minutes of the Grand Jury pro-
ceedings pursuant to Criminal Procedure Law §§
210.30 and 190.25(4)(a). lu the alternative, Defend-
ant asks this Court to require the District Attorney
to answer eighty (80) interrogatories, seventy -seven
(77) pertaining to the Grand Jury proceedings and
three (3) related to the indictment.

Criminal Procedure Law § 190.25(4Xa)

provides that “[gjrand jury proceedings **885 are
secret, and no grand juror, or other person ... may,
except ... upon written order of the court, disclose
the nature or substance of any grand jury testimony,
evidence, or any decision, result or other matter at-
tending’ a grand jury proceeding.”' Under CPL §
210.30(3) the release of grand jury testimony is au-
thorized solely when it is “necessary to assist the
court in making its determination on [a Defendant's
dismissal] motion.” CPL § 2 J 0.30(3) further re-
stricts the release of the minutes to “that grand jury
testimony which is relevant to a determination of
whether the evidence before the grand jury was leg-
ally sufficient to support a charge or charges con-
tained in such indictment.”

[1]{2] This Court examined the Grand Jury
minutes in camera and finds that sufficient evid-
ence was presented to support the indictment. Nor

was the Grand Jury proceeding defective. The legal
instructions to the Grand Jury were properly recor-
ded and legally sufficient. See People v, Calbud,
Inc., 49 N,Y,2d 389, 426 N.Y.S,2d 238, 402 N„E.2d
1140 (1980),

Despite Defendant’s allegations otherwise, the
charges herein are straightforward and pose no nov-
el concepts since they mirror well-established non-
capital crimes. Cf e.g., felony murder, Penal Law
§ 125.25(3), with Penal Law § 1 25.270 X0)(vii)
and (b) (ehsrged in the First and Second Counts of
Indictment No. 547/99); see also. People v. Van
Dyne, unpublished, slip opn. at p. 3 (Mon.Cty.Ct.
[Marks, J.) (September 3, 1998)). Thus, the release
of the minutes is not required under CPL §
210.30(3) to assist this Court in its determination.
See Socket v. Bartlett, 241 A.D.2d 97, 101-02, 671
N.Y.S.2d 156 (3rd Dept. 1998); People v. Cjigas,
unpublished, slip opn. at p. 36 (Westchester Cty.Ct.
(Angiolillo, J.) March 13, 1998); *599 People v,
Shulman, 172 Misc.2d 535, 536, 658 N.Y.S.2d 794
(1997); People v. Hale, slip opn, at 32-33, 173
Misc.2d 140, 661 N.Y.$.2d 457 (Sup.Ct., Kings
Cty.1997) (edited for publication); People v. Abdal-
lah a/k/a Tom Cruise, unpublished, slip opn. at p. 2
(Mon.Cty.Ct. (Wisner, J.] May 16, 1996). But, cf.
People v. Parker , Indictment No. 97-0762-001, un-
published, slip opn. at 24 (Erie Cty.Ct. (D'Amico,
J.] July 2, 1998) and People v. Grinned, unpub-
lished, slip opn. at p, 2 (Genesee Cty.Ct. [Griffith,
J ] March !2, 1997) (finding defendant had made
specific and compelling objections requiring release
of grand jury minutes under CPL § 210.30(3)).

(3] Defendant also argues that a “heightened
due process” constitutionally afforded all capital
defendants compels the release of the minutes. In a
myriad of unpublished opinions, the Courts of New
York have uniformly rejected the notion that the
potential penalty in a capital case warrants disclos-
ure of grand jury minutes. See e.g.. People v. Santi-
ago, unpublished, slip opn. at p. 2 ( Monroe
Cty.Ct. [Bristol, J.] January 26, 2000); People v.
Van Dyne , supra; People v. Johnson, unpublished.

©201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1281

Page 3

184 Mfsc,2<l 597, 71 1 N.Y.S.2d 884, 2W M Y Slip Pp.

(Cite as: 184 Misc.2d 597, 711 N.Y,S.2d tftl)

slip opii, at p. 3 (Albany Cty. Ct. [Bresfin, J-] July
27, 1998); People v. Be/!, slip opn, at 29, 172
Misc,2d 308, <559 N.Y.S.2d 713 (Sup.Ct., Queens
County 1997); People v, Chinn, NYU, Nov, 19,
1996, at 31, col 3 (Onondaga Cty. Ct 1996). Defend-
ant suggests, however, that the unique character of
this capital ease compels disclosure. This is the first
case in Monroe County where a defendant has been
charged with the First Degree Murder of two vic-
tims arising out of separate incidents, and yet has
not been indicted as a serial murderer. This is a dis-
tinction without a difference. See. People v*. Shut-
man \ supra,

Finally, there is no Brady material in the
minutes requiring release, Brady v, Maryland, 373
U,S. 83, 83 S.Ct, 1 194, 10 L.Ed.2d 2.15 (1963); cf.
People v. Morgan, 178 Misc.2d 595, 600-01, 682
N.Y.S.2d 533 (Fulton Cty.Ct.1998). This Court
finds no reason to depart from the clear mandate of
CPL §210.30.

Accordingly, Defendant's motion to inspeet the
Grand Jury minutes is granted. **886 Defendant's
motion to release the Grand Jury minutes is denied.
For the same reasons articulated above, this Court
declines to require the District Attorney to answer
the eighty (80) interrogatories relating to the Grand
Jury proceedings and the indictment.

N.Y.Co.Ct.,2000.

People v. Owens

184 Misc.2d 597, 711 N.Y.S.2d 884, 2000 N.Y.
Slip Op, 20306

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1282

Westlaw

Page 1

Not Reported in N.Y.S.2d, 2000 WL 33418975 (N.YCo.Ct.), 2000 N.Y. Slip Op. 40002(U)

(ate rs: 2000 'WL 33418975 (N.Y.Co.Ct.))

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK COUNTY COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK
v.

JOHN OWENS, Defendant.

lnd. No. 547/99 Consolidated with Indictment No,
414/99

DATED: April 24, 2000, Rochester, New York

HOWARD RELJN, ESQ. Monroe County District
Attorney MICHAEL GREEN, ESQ. Assistant Dis-
trict Attorney

D. MICHAEL MURRAY, ESQ. PETER J. PUL-
LANO, ESQ. Attorneys for the Defendant

EGAN, J.:

*1 This is a death penalty ease. Defendant
John Owens is charged with two counts of
Murder in the First Degree, three counts of
Murder in the Second Degree, and three counts of
Rape in the First Degree. The District Attorney's
office filed a Notice of Intent To Seek The Death
Penalty pursuant to Criminal Procedure Law
("CPL”) §250.40 on January 24, 2000.

Defendant seeks to compel the People to re-
spond more fully to his request for a Bill of Particu-
lars. Defendant relics on the oft-cited notion of
"heightened due process."

The purpose of a bill of particulars in a crimin-
al proceeding is not to obtain evidence but rather to
clarify an indictment. CPL §200.95. lit drafting die
death penalty statutes, the Legislature did not
amend the bill of particulars provisions of the

Criminal Procedure Law. Id. Defendant is only en-
titled to the particulars of the crime charged. People
v. Maekey, 49 NY2d 274, 278 (1980); People v.
lannone, 45 NY2d 589 (1978). Any notion of
“heightened due process” does not give this Court
the authority to redefine statutory criminal law

The exact sequence of events is not a necessary
element of the erime of First Degree Murder in vi-
olation of Penal Law §125.27(l)(a)(vii)(b). It is
sufficient that the prooF show that a death caused
by a defendant occurred white “in the course of or
furtherance of a rape or attempted rape, or "in the
course of and in furtherance of the immediate
flight” therefrom. Penal Law §125.27(lXa)(vti)(b);
CPL §200.95; see also, People v. Van Dyne, unpub-
lished, p. 3 (Mon. Cty. Ct. [Marks, J ] September 2,
1998); cf. People v. Perryman, 178 AD2d 9J6 (4th
Dept. 1991) (the use of the conjunctive “and or” in
the People's Bill of Particulars is not duplicitous).

Nor does the law require the People to specify
in a bill of particulars whether the First Degree
Murder charges are predicated upon the allegations
that Defendant killed two different victims during
the commission of Rape in the First Degree, or At-
tempted Rape in the First Degree. Fd. Further,
Defendant has not shown that he cannot adequately
prepare or eonduet his defense in the absence of
tli is information.

FNl . The Court notes that through a multi-
tude of other discovery devices Defendant
is able to obtain this information.

Defendant also seeks information concerning
the conduct that constituted forcible compulsion
within the meaning of Penal Law §130.35. Spe-
cifically, Defendant requests clarification whether
the forcible compulsion consisted of the use of
force or threats, and if threats are alleged, whether
they were express or implied. This Court finds that
the Bill of Particulars is sufficient to apprise De-
fendant of the theory to be advanced at trial without

€> 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1283

Page 2

Not Reported in N. Y.S.2d, 2000 WL 33418975 (N.Y.Co Of.), 2000 N.Y. Slip Op. 40002(U)

(Cite as; 2000 WL 33418975 (N.Y.Co. Ct.))

requiring the disclosure of evidence. See People v.
Earel, 220 AD2d 899 (3rd Dept. 1995), aff d an
other grounds, 89 NY 2d 960 (1997).

*2 Finally, Defendant asks what were the
“exact date, time and place*’ of the alleged murders
set forth in the first four counts of the indietment.
CPL $200,50(6) requires that each count of an in-
dictment indicate a designated date or period of
time the charged offense was committed. An indiet-
ment as supplemented by a bill of particulars may
allege the time in approximate terms, so long as it
is not an essential clement of the offense eharged.
People v. Watts, 84 NY2d 945, 949 (1994); People
v. Moms, 61 NY2d 290, 292 (1954). This Court
finds that the District Attorney's Bid of Particulars
designates a time interval for each offense that
eomports with Defendant's constitutional right to be
reasonably informed of charges against him. The
Court denies Defendant's request for any further in-
formation concerning the time of the alleged of-
fenses.

Accordingly, Defendant's motion to compel a
further response to his request for a Bill of Particu-
lars is denied.

The Court notes that the Bill of Particulars an-
nexed as Exhibit A to Defendant's motion is not the
pleading (marked as DEF 6), which was filed with
this Court and served upon the District Attorney’s
office. Exhibit A shall be stricken from the record
for purposes of any further aetion and, or proceed-
ing.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v. Owens

Not Reported in N.Y.S.2d, 2000 WL 33418975
(N.Y.C6.CL), 2000 N.Y. Slip Op. 40002(0)

END OF DOCUMENT

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works,

1284

Westiaw;

Page 1

Not Reported in N.Y,S.2d, 2000 WL 33418977 (N.Y.Co.Ct.), 2000 N.Y. Slip Op. 40003(U)

(Cite as: 2000 WL 33418977 (N.Y.Co.Ct.))

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK COUNTY COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK,
v.

JOHN OWENS, Defendant.

Ind. #547/99 Consolidated with #4 1 4/99
DATED; May 25, 2000, Rochester, New York

On Behalf of the People: HOWARD RELIN, ESQ.
Monroe County District Attorney MICHAEL
GREEN, ESQ. Special Assistant District Attorney
JOANNE WINSLOW, ESQ. Assistant District At-
torney

On Behalf of the Defendant: D. MICHAEL MUR-
RAY, ESQ. PETER J, PULLANO, ESQ. Attorneys
for llie Defendant

EGAN, J.:

*1 This is a death penalty case. Defendant
John Owens is charged with two eounts of
Murder in the First Degree, three eounts of
Murder in the Second Degree, and three counts of
Rape in the First Degree. The District Attorney's
ofTiee filed a Notiee of Intent To Seek The Death
Penalty pursuant to CPL §250,40 on January 24,
2000 .

Defendant requests an order declaring CPL
§400.27 (3) unconstitutional both on its face and as
it is applied to this case. Defendant further seeks an
order invalidating CPL §400.27 to the extent it bars
Defendant from challenging aggravating factors at
sentencing. In the alternative. Defendant urges this
Court to refrain from instructing the jury at senten-

cing that an aggravating faetor proven during trial
is to be deemed proven beyond a reasonable doubt,
and instead to allow the defense to re-liligate these
factors. The People oppose all applications.

CPL §400.27(3) prohibits the District Attorney
from introducing evidence of aggravating faetors at
the sentencing phase of a trial that he failed to
prove beyond a reasonable doubt during the guilt
phase. This restriction benefits a defendant by pre-
venting the^ People, except in two specific circum-
stances , from introducing evidence of any ad-
ditional aggravating factors, and by confining them
to rebutting mitigating evidence. The capital sen-
tencing scheme meets the standards of the New
York and United States Constitutions. In accord.
People v. Harris, 177 Misc. 2d 165, 166 (Kings
Cty, Ct. 1998); People v. Mateo, 175 Misc 2d 192,
220 (Mon. Cty. Ct. 1997). Penal Law §125.27(1) n
'genuinely naiTOwjV] the class of persons eligible
for the death penalty’ ” by delineating twelve dis-
tinct aggravating factors that raise the gravity of
their erimes above other murders. See Lowenfiekl
v Phelps, 484 US 231, 244(1988) FN2 , CPL
§400.27(3) then employs a balancing test, justifying
the imposition of a death sentence in only those
cases where those aggravating factors proved at tri-
al substantially outweigh all mitigating evidence.
See CPL §§400.27(3), (6), and (1 1). Despite the de-
fense's claims otherwise, CPL §400.27(3) provides
fox an individualized sentencing determination by
allowing the Defendant to challenge any aggravat-
ing factors by presenting mitigating evidenec
“concerning the crime, the defendant’s state of mind
or condition at the time of the crime. . even in
hearsay form. See CPL §400.27(9)(f).

FN1. CPL §400.27(7) lists two exceptions
to this rule. Neither apply to this ease.

FN2. As the United States Supreme Court
noted there is “ . .no reason why this nar-
rowing function may not be performed by
jury findings at either the sentencing phase

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1285

Page 2

Not Repotted in N.Y.S.2d, 2000 WL 33418977 (N.Y.Co.Ct), 2000 N Y. Slip Op. 40003(U>

(Cite as: 2000 WL 33418977 (fLYXoXt.))

of the trial or the guilt phase.” Lowenfield,
supra, at 244-45.

*2 Defendant has not overcome the presump-
tion of validity of the challenged statute demon-
strated CPL §400,27(3) to be unconstitutional bey-
ond a reasonable doubt. People v. Foley, 2000 N.Y.
LEXIS 521 (April II, 2000); People v. Bright, 71
NY2d 376, 382 (1988). Defendant's motion is
therefore denied.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v. Owens

Not Reported in N.Y.S.2d,_ 2000 WL 33418977
(N.Y.Co.Ct.), 2000 N.Y, Slip Op. 40003CU)

END OF DOCUMENT

© 20H Thomson Reuters. No Claim to Orig. US Gov, Works.

1286

Westlaw

Page 1

Not Reported in N.Y.S.2d, 2000 WL 33418979 (N.Y.Co.Ct.), 2000 KY. Slip Op. 40004(U)

(Cite as: 2000 WL 33418979 (N.Y.Co.Ct.))

n

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N,Y.S.2d.

STATE OF NEW YORK COUNTY COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK,
v.

JOHN OWENS, Defendant.

Ind. ft 547/99 Consolidated with #414/99
DATED: May 30, 2000, Rochester, New York

HOWARD RELIN, ESQ. Monroe County District
Attorney MICHAEL GREEN, ESQ. Special Assist-
ant District Attorney JOANNE WINSLOW, ESQ.
Assistant District Attorney

D. MICHAEL MURRAY, ESQ. PETER J. PUL-
LANO, ESQ Attorneys for the Defendant

EGAN, L:

*1 This is a death penalty case. Defendant
John Owens is charged with two counts of
Murder in the First Degree, three counts of
Murder in the Second Degree, and three counts of
Rape in the First Degree. The District Attorney's
office filed a Notice of Intent To Seek The Death
Penalty pursuant to CPL §250.40 on January 24,
2000.

Criminal Procedure Law §400.27(10) provides
that, after rendering a guilty verdiet, but before sen-
tencing, the court shall instruct the juiy that they
must reach a unanimous verdict concerning whether
to impose a sentence of death, or life imprisonment
without the possibility of parole. CPL §400.27(10)
further requires the court to instruct the jury that if
they are unable to reach a unanimous verdict con-
cerning sentencing, “the court will sentence the de-

fendant to a term of imprisonment with a minimum
term of between twenty and twenty-five years and a
maximum term of life.” CPL §400,27(10).

Defendant seeks an order invalidating CPL
§400.27(10), or alternatively, asks the Court to re-
frain from instructing the jury concerning the con-
sequences of not reaching a unanimous verdict on
sentencing. Defendant argues that this anticipatory
deadlock instruction may coerce jurors who favor a
life sentence without the possibility of parole to
vote for death, simply to avoid the more lenient
sentence. Defendant contends that the potential ef-
fect of “leading some jurors to vote for death, not
because they believe it is the appropriate sentence,
but beeause they feel that the possibility of release
is not a reasonable alternative to death" renders
CPL §400.27(10) unconstitutional. Defendant also
complains that the verdiet sheet promulgated by the
Office of Court Administration listing “not unanim-
ous" as a sentencing determination is also improp-
er.

The People oppose all aspects of Defendant's
motion. The People also urge that Defendant lacks
standing to challenge the constitutionality of CPL
§400.27(10), and the issue is not ripe for this
Court's determination. This Court disagrees ,
but finds that Defendant has not proved beyond a
reasonable doubt that CPL §400.27(10) is unconsti-
tutional.

FN1. The parties need to have this Court's
decision in preparing for voir dire. See
People v. Santiago, unpublished, p. 3
(Mon. Cty. Ct. (Bristol, J,] (January 18,
2000); People v. Van Dyne, unpublished,
p, 4 (Mon. Cty. Ct. [Marks, J.j (September
2, 1998); Cf. People v. McIntosh, unpub-
lished p. 4 (Dutchess Cty. Ct.[Marlow, J.j
1998); People v Chinn, NYLJ p. 32, eol. 6
(October 29, 1998).

*2 The courts of New York have almost uni-

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1287

Page 2

Not Reported in N Y.SV2d;'2000 WL 3341897 9 (N.Y.Co.Ct.), 2000 N.Y, Slip Op. 40004(H)

(Cite as: 2000 WL 33418979 (N;Y.Co.Ct.))

formly rejected the notion that CPL §400,27(10) is
nnconstitutional. People v. Santiago, unpublished,
p. 3 (Mon. Cty, Ct. [Bristol, J.] (Jannary 18, 2000);
People v. Gordon, NYLJ, p, 32, col. 6 (October 29,
1998); People v. Van Dyne, unpublished, p. 4
(Mon. Cty. Ct. [Marks, J.} (September 2, 1998);
People v. Parker, unpublished, p. 38-41 (Erie Cty.
Ct. [D’ Arnico, J.J (July 2, 1998); People v. Shul-
man, NYLJ p. 35, col. 4 (January 30, 1998); People
v. Mateo, 175 Mise. 2d 192, 225 (Mon. Cty. Ct
1997). While one court has found that CPL §400.27
(10) is unconstitutional, aud refused to instruct the
jury in anticipation of a potential deadlock ( People
v. Harris, 177 Misc, 2d 160, 164 (Sup. Ct. Kings
Co. 1998)], that jury later inquired on its own about
the consequences of not reaching a unanimous ver-
dict, and ultimately, sentenced that defendant to
death .

This Court agrees with the rationale of New
Jersey’s highest court when it refused to invalidate
a similar anticipatory deadlock instruction, “to hide
from the jury the full range of its sentencing op-
tions, thus permitting its decision to be based on
uninformed and possibly inaccurate speculation, is
to mock the goals of rationality and consistency re-
quired by modem death penalty jurisprudence."
State v. Ramseur, 106 NJ 123, 309, 524 A2d 188,
(1987); see also. State v. Brown, 138 NJ 481, 651
A2d 1? (1994) (finding NJSA 2C: 11 -3f constitu-
tional); cf. Jones v. United States, 527 US 373, 383
(1999).

The anticipatory deadlock instruction correctly
advises the jury that a non-unanimous verdict is a
final verdict. See People v. Shulman, supra. Nor
does this Court find that the instruction tips the
scales in favor of death. Cf. People v. Harris, supra.
It is as likely that those jurors who favor life
without the possibility of parole will persuade
death-prone jurors to change their vote to avoid a
non-unanimous verdict, and its associated lenient
sentence. Instead the deadlock instruction actually
benefits the Defendant by encouraging all jurors to
stand by their beliefs, since a non-unanimous ver-

dict is a final verdict, consistent with their earlier
vote for conviction.

Defendant’s motion is denied.

This shall constitute the Opinion, Decision and.
Order of this Court.

ZYNY

People v. Owens

Not Reported in N.Y.S.2d, 2000 WL 33418979
(N.Y.Co.Ct.), 2000 N.Y. Slip Op. 40004{U)

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1288

Page 1

20307

Westiaw.

184 Misc.2d 600, 710 N,Y.S.2d 790, 2000 N.Y. Slip Op.
(Cite as: 184 Misc.2d 600, 7 IQ N.Y.S.2d 790)

Supreme Court, Monroe County, New York.

The PEOPLE of the State of New York, Plaintiff,
v.

John OWENS, Defendant-
June 5, 2000,

Capital murder defendant sought declaratory
relief in form of order declaring statute and consti-
tutional provision prohibiting waiver of jury in cap-
ital prosecution invalid or inapplicable to guilt
phase of his trial. The Supreme Court, Monroe
County, David D, Egan, J., held that: (I) issue of
invalidity or inapplicability of statute and constitu-
tional provision at issue was not yet ripe for adju-
dication, and (2) defendant failed to establish un-
constitutionality or inapplicability of statute and
constitutional provision at issue beyond reasonable
doubt.

Motion denied.

West Headnotcs
fl) Jury 230 €=>29(2)

230 Jury

230II Right to Trial by Jury
230k27 Waiver of Right
230k29 In Criminal Cases

230k29(2) k. Right to Waive Jury in
General. Most Cited Cases

Capital murder defendant is prohibited from
waiving a jury trial at either phase of his trial.
McKinney's Const. Art. 1, § 2; McKinney's CPL §
320.10.

|2] Declarator Judgment 118A €=>121

1 18A Declaratory Judgment

1 1 8 All Subjects of Declaratory Relief
1 1 8AI1(D) Constitutions

118Akl21 k. In General. Most Cited

Cases

Declaratory Judgment USA £>=>124.1

118A Declaratory Judgment

1 1 8AI1 Subjects of Declaratory Relief
I18AII(E) Statutes

1 l8AkJ24 Statutes Relating to Particular

Subjects

1 18Akl24.1 k. In General. Most Cited

Cases

Issue of invalidity or inapplicability of statute
and Constitutional provision prohibiting waiver of
jury in capital proseeution was not yet ripe for adju-
dication, on capital murder defendant’s application
for declaratory relief in form of order declaring
statute and constitutional provision prohibiting
waiver of jury in capital prosecution invalid or in-
applicable to guilt phase of his trial, where defend-
ant had not yet requested bench trial. McKinney's
Const. Art. 1, § 2; McKinney's CPL § 320.10,

[3] Jury 230 €==>29(2)

230 Jury

23011 Right to Trial by Jury
230k27 Waiver of Right
230k29 In Criminal Cases

230k29(2) k. Right to Waive Jury in
Genera!. Most Cited Cases

Capital murder defendant failed to establish
beyond reasonable doubt uneonstitotionality or in-
applicability of statute and constitutional provision
prohibiting waiver of jury in capital prosecution,
where prohibition bore rational relationship to legit-
imate governmental purpose and statutory provision
allowing separate jury at sentencing phase applied
only under extraordinary circumstances and for
good cause shown. McKinney's Const. Art. 1, § 2;
McKinney's CPL §§ 320 JO, 400.27, subd, 2.

[4j Criminal Law 110 €=>251

1 10 Criminal Law

1 1 OXin Nonjury or Bench Trial and Conviction

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1289

Page 2

203(P

184 Mise.2d 60Q, 710 RY,S.2d 790, 2000 N.Y. Slip Op,
(Cite ns: 184 Misc.2d 600, 710 N.Y .5*1 u 790)

1 10k251 k. Rights of Accused ill General.
Most Cited Cases

While federal and state constitutions guarantee
a defendant a right to a jury trial, no similar guaran-
tee is bestowed upon the right to a bench trial.
U.S.C.A. Const, Art, 3, § 2, cl, 3; McKinney’s
Const, Art. I, § 2.

IS] Constitutional Law 92 €=*3811

92 Constitutional Law

92XXVI Equal Protection
92XXVI(F) Criminal Law

92k3807 Sentencing and Punishment
92k381 1 k . Capital Punishment; Death
Penalty. Most Cited Cases
(Formerly 92 k2 13. 1(1))

Capital defendants are not a suspeet class under
an equal protection analysis. U.S.C.A.
Const. Amend. 14.

{6] Constitutional Law 92 €=>3830

92 Constitutional Law
92XXVI Equal Protection
92XX V1(G) Juries

92k3830 k. In General. Most Cited Cases
(Formerly 92k250.2(4))

Equal protection clause merely prescribes that
the prohibition against waiver of the right to a jury
trial in a capital case bear a rational relationship to
a legitimate government purpose. U.S.C.A.
Const. A mend, 14; McKinney's Const. Art. 1,9 2;
McKinney's CrL 9 320.10.

1 7] Jury 230 €=>29(2)

230 Jury

23011 Right to Trial by Jury
230k27 Waiver of Right
230k29 In Criminal Cases

23 Ok 29(2) k. Right to Waive Jury in
General. Most Cited Cases

Prohibition against waiver of right to jury trial
in a capital ease bore rational relationship to legit-
imate government purpose of interposing jury to act

as safeguard between an individual and tyranny of
the state, and reflected legitimate reluctance to en-
trust plenary powers over life and liberty of the cit-
izen to one judge rather than to jurors representing
conscience and moral judgment of community.
U.S.C.A, Const. Amend. 14; McKinney's Const.
Art. 1, § 2; McKinney's CPL § 320.10.

18) Jury 230 €=329(2)

230 Jury

23011 Right to Trial by Jury
230k27 Waiver of Right
230k29 In Criminal Cases

230k29(2) k. Right to Waive Jury in
General. Most Cited Cases

Statutory prohibition against waiver of jury tri-
al in capital cases was not superseded by provision
of death penalty statute permitting bifurcation of
eapital proceedings and empanelment of separate
jury at sentencing phase, where death penally stat-
ute envisioned use of separate jury at sentencing
only in extraordinary cireumstanecs and for good
cause shown. McKinney's CPL §§ 320.10, 400.27,
subd. 2.

**791*600 D. Michael Murray and Peter J. Pullano
, Rochester, for defendant.

Howard R. Relin, District Attorney of Mouroe
County (Michael Green and Joanne Winslow,
Rochester, of counsel), for plaintiff,

DAVID D. EGAN, J.

*601 Defendant seeks an Order deelaring both
Criminal Procedure Law § 320.10 and that portion
of Article I, § 2, of the New York Constitution
which denies a eapital defendant the right to waive
a jury in the guilt phase of his trial invalid, or, in
the alternate, inapplicable to the guilt phase of De-
fendant's trial.

[1] Article I, § 2 of the New York Constitution
and CPL § 320,10 prohibit a capital defendant from
waiving a jury trial at either phase of his trial. Art-
icle 1, § 2, of the New York Constitution provides

© 20 II Thomson Reuters, No Claim to Orig. US Gov. Works,

1290

Page 3

134 Misc.2d 600, 710 N.Y.S.2d 790, 2000 N v Slip Op, ?0307
(Cite as: 184 Mise,2d 600, 710 N.Y.S.2c! 790j

in relevant part: “[a] jury trial may be waived by
the defendant in all criminal cases, except those in
which the crime charged may be punishable by
death,” CPL § 320.10(1) permits all criminal de-
fendants to waive a jury trial “[ejxcept where the
indictment charges the crime of murder in the first
degree.”

Under the guise of “heightened due process,”
Defendant argues that he has a constitutional right
to waive a jury trial. Defendant also claims that the
prohibition against a nonjury trial violates his rights
of equal protection and due process by depriving
him of a tactical option available to non-capital de-
fendants. Defendant emphasizes that “a judge ...
may be better suited to analyze the evidence
without [being] sway[cd] by pretrial publicity.”
This case, like any murder trial, has received some
media attention.

The People oppose all aspects of Defendant's
motion. The People also urge that Defendant laeks
standing to challenge the constitutionality of CPL §
320.10 and the relevant portion of Article I, § 2, of
the New York Constitution, and the issue is not ripe
for this Court's determination, since Defendant has
yet to, request a bench trial, or been convicted of
first degree murder and sentenced to death.

[2] Defendant's indictment for First Degree
Murder “brought [him] squarely within the stat-
utory scheme which he argues is facially defect-
ive.” **792People v. McIntosh, 173 Misc.2d 727,
728, 662 N.Y.S.2d 214 (Dutchess Cty.Ct.1997); see
also, People v. Van Dyne, unpublished, p. 2
(Mon.Cty.Ct. [Marks, J.J (September 2, 1998)). But
this Court finds that since this Defendant has yet to
make a request for a bench trial the issue is not
ripe. Cf. People v. Santiago, unpublished, p. 3
(Mon.Cty.Ct. [Bristol, J.J (December 21, 1999)).
Even if Defendant were to make a perfunctory re-
quest for a bench trial, the same would be denied.

[3] [4] This Court finds that Defendant has not
proved beyond a reasonable doubt that CPL §
320.10 and that portion of Article I, § 2, of the New

York Constitution are unconstitutional, or should be
invalidated. Accord People v. Johnson, unpublished
p. 18 [BresJin, J.] (Albany Cty.Ct. July 27, 1998);
*602PeopIe v\ McIntosh, 173 Misc.2d 727, 734-35,
662 N.Y.S.2d 214 (Dutchess Cty.Ct. 1997); People
v. Mateo. 175 Misc.2d 192, 664 N.Y.S.2d 981
(Mon.Cty.Ct.1997). Our Federal and State constitu-
tions guarantee a defendant a right to a jury trial.
U.S. Const, Art. Ill, § 2, cl. (3); NY Const. Art. I, §
2 (the right to a jury trial “shall remain inviolate
forever”). No similar guarantee is bestowed upon
the right to a bench trial. United States v. Jackson,
390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138
(1968); Singer v. United States, 380 U.S. 24, 34, 85
S.Ct. 783, 13 L,F.d.2d 630(1965).

[5][6](7] Nor are capital defendants a suspect
class under an equal protection analysis. Gray v.
Lucas, 677 F.2d 1086, 1 106 (5th Cir-1982); People
v. Parker , unpublished, p. 38 [D'Amico, J.J (Erie
Cty.Ct. July 2, 1998). Since there is neither a sus-
pcet elass nor a fiindamental right at issue, the
equal protection clause merely prescribes that the
prohibition bear a rational relationship to a legitim-
ate government purpose. People v. Walker, 81
N.Y.2d 661, 668, 603 N.Y.S.2d 280, 623 N.E.2d 1
(1993). The prohibitions against nonjury trials al-
low a jury to act as a safeguard between an indi-
vidual and the tyranny of the State, and reflect the
legitimate “reluetance to entrust plenary powers
over the life and liberty of the citizen to one judge
...” ( Duncan v. Louisiana, 391 U.S. 145, 156, 88
S.Ct. 1444, 20 L Ed.2rt 491 (1968)), rather than to
twelve jurors who represent the “conscious and
moral judgment of the community.” People v. Hale,
173 Misc,2d 140, 188, 661 N.Y.S.2d 457 (Sup.Ct.,
Kings County); Hynes v. Tomei, 237 A.D.2d 52,
666 N.Y.S.2d 687 (2d Dept. 1997).

[8] Defendant further claims CPL § 320.10 is
anachronistic since the recently enacted death pen-
alty statutes provide for a bifurcated trial. A de-
fendant's waiver of a jury at the guilt phase now no
longer precludes a jury from sentencing him. De-
fendant's claim of heightened due proeess does not

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1291

Page 4

184 Misc.2d 600, 710 N.Y.S.2d “790, 2000 N Y. Slif Op. 20307
(Cite as: 184 Misc,2d 600, 710 N.Y.S M 790)

warrant rewriting the death penalty statutes. Al-
though providing for bifurcation, CPL § 400.27(2)
envisions the use of a distinct jury for sentencing
only in “extraordinary circumstances*’ and for
“good cause [shown].” See People v. Johnson,
supra , slip opn., at p. 21 .

Defendant’s motion is denied.

N.Y.Sup.,2000.

People v. Owens

184 Mise.2d 600, 710 N.Y.S.2d 790, 2000 N.Y.
Slip Op. 20307

END OF DOCUMENT

© 201 1 Thomson Reuters, No Claim to Orig. US Gov. Works.

1292

Westiaw,.

Not Reported in N.Y.S.2d, 2000 WL 33421394 (N.Y.Sup.), 2000 N.Y. Slip Op, 40009(0)
(Cite as: 2000 WL 33421394 (N.Y.Sup.))

age I

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S,2d,

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK,

V.

JOHN OWENS, Defendant.

Ind. #547/99 Consolidated #414/99
DATED: June 21, 2000, Rochester, New York

HOWARD R. RETJN, ESQ. Monroe County Dis-
trict Attorney MICHAEL C. GREEN, ESQ. Spceial
Assistant District Attorney JOANNE M.
WINSLOW, ESQ. Assistant Distriet Attorney

D. MICHAEL MURRAY, ESQ. PETER J. PUL-
LANO, ESQ Attorneys for the Defendant

EGAN, J.:

*1 This is a death penalty case. Defendant
John Owens is charged with two counts of
Murder in the First Degree, three counts of
Murder in the Seeond Degree, and three counts of
Rape in the First Degree. The District Attorney's
offiee filed a Notice of Intent To Seek The Death
Penalty pursuant to CPL §250.40 on January 24,
2000 .

Criminal Procedure Law §400.27(14) author-
izes discovery after convielion for the purposes of
sentencing. Defendant objeets to CPL §400.27
(14)(a)(ii) because it incorporates the “reverse”
Rosario discovery provision embodied in CPL
§240.45 into the eapita! sentencing proceeding. De-
fendant argues that CPL §400.27(1 4)(a)(ii) will
have a “chilling effeet” on Defendant's sentencing
phase strategy by compelling the disclosure of mit-
igation materials, and thus is unconstitutional. See

New York Const, Art. L; U.S. Const., Amds. 5th,
6th, 8th and 14th.

Criminal Procedure Law §400.27(14) requires
that both the prosecution and the defense disclose
“[a]t a reasonable lime prior to the sentencing pro-
ceeding” all relevant undisclosed discovery materi-
als, which are not subject to protective order, and
any Rosario materials relating to witnesses they in-
tend to call.

This Court finds no constitutional infirmity.
CPL §400.27(14) treats the proseeution and the de-
fense equally. Accord People v. Page, unpublished,
p. 1 (Rings Cty. Ct. [Hall, J.] (October 22, 1998);
People v. Shuiman, NYU p. 25 (December 4,
1997); People v. Mateo, 175 Mise. 2d 192, 224
(Mon. Cty. Ct. 1997); see also, People v, Capicotto,
50 NY2d 222, 226(1980).

Reciprocal discoveiy is an integral part of
criminal procedure. Id. As the United States Su-
preme Court noted in Wardius v. Oregon, 412 US
470, 474 (1973) “[t]he growth of such discovery
deviees is a salutary development which, by in-
creasing the evidence available to both parties, en-
hances the fairness of the adversary system,” Id.;
see Williams v. Florida, 399 US 79, 82 (1970)
(upholding state statute requiring a defendant to
disclose the names of alibi witnesses). Defendant’s
elaim of “heightened due process” does not warrant
a different result.

Defendant has not overcome the presumption
of validity of the challenged statute, nor demon-
strated CPL §400.27(14) to be unconstitutional bey-
ond a reasonable doubt. People v. Foley, 2000 N.Y.
LEXIS 521 (April 11, 2000); People v. Bright, 71
NY2d 376, 382 (1988).

*2 Defendant’s motion is denied.

This shall eonstitute the Opinion, Decision and
Order of this Court.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1293

Page 2

No! Reported in N.Y.S.2d, 2000 WL 33421394 (N.Y.Sup.), 2000 K.Y. Slip Op. 40009(U)

(Cite as: 2000 WL 33421394 (N.Y.Sup.))

ZYNY

People v, Owens

Not Reported in N.Y.S.2d, 2000 WL 33421394
(N.Y.Sup.), 2000 N.Y. Slip Op. 40009(U)

END OF DOCUMENT

© 20 U Thomson Reuters. No Claim to Orig. US Gov. Works.

1294

Westiaw,

Page 1

Not Reported in N.Y.S.2d, 2000.WL 33421395 (N.Y.Sup.), 2000 N.Y. Slip Op. 40010(U)

(Cite as: 2000 WL 33421395 (N.Y.Sup.))

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK,
v.

JOHN OWENS, Defendant.

Ind. # 547/99 Consolidated with #4 14/99
DATED: July 7, 2000, Rochester, New York

HOWARD R. RELIN, ESQ. Monroe County Dis-
trict Attorney MICHAEL C. GREEN, ESQ. Special
Assistant District Attorney JOANNE M.
WINSLOW, ESQ. Assistant District Attorney

D. MICHAEL MURRAY, ESQ. PETER J. PUL-
LANO, ESQ Attorneys for the Defendant

EGAN, J.:

*1 This is a death penalty case. Defendant
John Owens is charged with two counts of
Murder in the First Degree, three counts of
Murder in the Second Degree, and three counts of
Rape in the First Degree. The District Attorney's
office filed a Notice of Intent To Seek The Death
Penalty pursuant to CPL §250.40 on January 24,
2000.

Defendant challenges the so-called life and
death qualification of a prospective capital jury pur-
suant to CPL §270.20. CPL §270.20(1 )(f) permits
the reinovai for cause of a prospective juror who
“entertains such conscientious opinions either
against or in favor of such punishment as to pre-
clude such juror from rendering an impartial ver-
dict” or determining a sentence pursuant to CPL
§400.27. Id.

In drafting CPL §270.20 the New York State
Legislature conformed with the standards set by the
United States Supreme Court in determining when
such qualification of a jury was constitutional under
our Federal constitution. See Morgan v. Illinois,
504 US 719 (1992) (life qualification); Lockhart v.
McCrec, 476 US 162 (1986) (death qualification);
Wainwright v, Witt, 469 US 412 (1985), quoting
Adams v. Texas, 448 US 38, 45 (1980) (“the proper
standard for determining when a prospective juror
may be excluded for cause because of his. . .views
on capital punishment ... is whether the juror’s
views would 'prevent or substantially impair the
performance of his duties as a juror in accordance
with his instructions and his oath”').

Further, the courts of New York uniformly
have found the so-called life and death qualification
provision to be sound under our State constitution.
People v. Santiago, unpublished, p. 2 (Mon. Cty.
Cl. [Bristol, J.] (December 21, 1999); People v,
Cahill, unpublished, p. 8-10 Indictment #98/3434,
(Onondaga Cty. Ct. [Burke, J.] April 27, 1999);
People v. Arroyo, 178 Misc. 2d 362, 365
(Schoharie Cty. Ct. 1998); People v. Van Dyne, un-
published, p. 6 (Mon. Cty. Ct. [Marks, J.]
(September 18, 1998); People v. Harris, 176 Misc.
2d 967, 970-71 (Sup. Ct. Kings Cty. 1998) (no fa-
cial constitutional defect); People v. Mateo, 175
Misc. 2d 192, unpublished portion, p. 58-9 (Mon.
Cty. Ct. [Connell, J.] 1997); People v. Hale, 173
Misc. 2d 140, 190-94 (Sup. Ct. Kings Cty. 1997);
People v. Chinn, Nov. 19, 1996 NYLJ, at 31, col. 3
(Onondaga, Cty. Ct. 1996). This Court aiso finds
CPL §270.20 is not faejally unconstitutional.

*2 Defendant also argues that CPL §270.20
does not give him sufficient leeway to
“life-qualify” the jury, more specifically, to identify
and remove potential jurors who would always fa-
vor the death penalty, regardless of any mitigating
factors. See Morgan v. Illinois, supra at 732. De-
fendant emphasizes that CPL §270.20 permits him
only to exelude for cause those potential jurors

© 201 1 Thomson Reuters. No Claim to O rig. US Gov. Works.

1295

Page 2

Not Reported in N.Y.S,2d, 2000 WL 33421395 (N.Y.Sup.), 2000 N.Y. Slip Op. 400j0(U)

(Cite ns: 2000 WL 33421395 (N.Y.Sup.))

whose conscientious opinions “preclude” them both
from being fair and impartial, and from considering
alternatives to a death sentence, and not those jur-
ors whose views would “impair” those abilities.

This Court is not persuaded by Defendant's at-
tempt to lower the constitutional threshold set for
exclusion by the United States Supreme Court.
Loekhart v. MeCree, supra. This Court finds that
the plain meaning of the term “preclude” is consist-
ent with the phrase "prevent or substantially im-
pair.” See MeKinney's Cons. Laws of NY, Book 1,
Statutes §150 (e) (a court must construe a statute, if
possible, in harmony with constitutional mandates);
People v. Hale, supra at 193 (where the eourt con-
cluded that if a juror's ability to be fair and impar-
tial, and to abide by his oath is “substantially im-
paired]”, that juror is “precluded” from so aetiug).
Cf. People v. Hansen, unpublished, p. 29 (Albany
Cty. Ct. [Rosen, L] March 31, 1998); People v.
McIntosh, 173 Misc. 2d 724, 727 (Dutchess Cty.
Ct. 1997) (where the court allowed, defense chal-
lenges for cause when advaneed against those pro-
spective jurors whose views in favor of the death
penalty would preclude or “substantially impair”
those jurors’ ability to perform their duty in accord-
ance with law).

Sinee this Court finds that the life and death
qualification of a capital jury is constitutional, it
need not, as Defendant suggests, defer such quali-
fication of the jury until the sentencing phase, and/
or empanel separate juries for the guilt and senten-
cing phase of the trial.

Finally this Court finds no merit to Defendant's
claim that CPL §270.20 violates his right to be tried
by a jury composed of a fair cross-section of the
community. See Lockhart v, MeCree, 476 US at
174 (“groups defined solely in terms of shared atti-
tudes that would prevent or substantially impair
members of the group from performing one of their
duties as jurors. . . are not 'distinctive groups' for
[Sixth Amendment] fair-cross- sectiou violations”).

Defendant's motion is denied.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v. Owens

Not Reported in N.Y.S.2d, 2000 WL 33421395
(N.Y.Sup.), 2000 N.Y. Slip Op. 40010(U)

END OF DOCUMENT

€> 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1296

Westiaw,

Page 1

Not Reported in N.Y.S.2d, 2000 WL 33421393 (N.Y.Sup.), 2000 N.Y. Slip Op. 40008(U)

(Cite as: 2000 WL 33421393 (N.Y.Sup.))

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK,

v.

JOHN OWENS, Defendant.

Ind. #547/99 Consolidated with #414/99
DATED: June 21, 2000, Rochester, New York

HOWARD R. RELIN, ESQ. Monroe County Dis-
trict Attorney MICHAEL C. GREEN, ESQ. Special
Assistant District Attorney JOANNE M.
WINSLOW, ESQ. Assistant Distriet Attorney

D. MICHAEL MURRAY, ESQ. PETER J. PUL-
LANO, ESQ. Attorneys for the Defendant

EGAN, J.:

*1 This is a death penalty case. Defendant
John Owens is charged with two counts of
Murder in the First Degree, three counts of
Murder in the Second Degree, and three counts of
Rape in the First Degree. The District Attorney's
office filed a Notice of Intent To Seek The Death
Penalty pursuant to CPL §250.40 on January 24,
2000.

Defendant now moves to strike the Death No-
tice by challenging the procedures adopted hy the
New York Department of Correctional Services for
administering a sentence of death by lethal injec-
tion. See Corrections Law §658. In the alternate.
Defendant seeks to stay his potential execution un-
til constitutionally acceptable procedures have been
implemented. Defendant urges that the current pro-
cedures create a substantial and unnecessary risk
that his potential execution will be painful and tor-

turous and therefore are in violation of his rights
safeguarded under, our state and federal constitu-
tions. See New York Const., Art. I.; U.S. Const.,
Amds. 5th, 6th, 8th and 14th. In support, Defendant
highlights examples of executions in other states
that have not resulted in immediate death. Defend-
ant also submits an affidavit of anesthesiologist
who analyzed the Department of Correction Ser-
vices guidelines and found them wholly inadequate
to ensure a constitutionally sound execution.

This Court lacks jurisdiction to entertain
whether the procedures adopted by the Department
of Correction Services are adequate. Accord People
v. Santiago, unpublished, p.l (Mon. Cty. Ct.
[Bristol, J.] (January 6, 2000); People v. Mateo, un-
published, p. 2 (Mon. Cty. Ct. [Connell, J.]
(January 27, 1999); People v. Page, unpublished, p.
1 (Kings Cty. Ct. [Hall, J.] (October 27, 1998);
People v. Harris, July 7, 1998 NYU, p. 30, col 4
(Slip. Ct., Kings Cty. 1998). This Court thus de-
clines to consider whether the matter is ripe for its
review. Cf. People v. Santiago, supra; People v.
Page, supra; People v. Arroyo, 178 Misc. 2d 653,
654 n.I (Sehoharie Cty.Ct. 1998).

Defendant's motion is denied.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v. Owens

Not Reported in N.Y.S.2d, 2000 WL 33421393
(N.Y.Sup.), 2000 N.Y. Slip Op. 40008(U)

END OF DOCUMENT

©201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1297

Westiaw,

185 Misc.2d 490, 713 N.Y.S.2d 256, 2000 N.Y. Slip Op. 20435
(Cite as: 185 Misc.2d 490, 713 N.Y,S.2d 256)

Page 1

Supreme Court, Monroe County, New York.
The PEOPLE of the State of New York, Plaintiff,
v.

John OWENS, Defendant.

July 7, 2000.

Defendant charged with first degree murder
filed motion to declare the eapital felony murder
statute unconstitutionally vague and overbroad. The
Supreme Court, Monroe County, David D. Egan,
J., held that: (1) the statute was not unconstitution-
ally vague, and (2) the statute was not unconstitu-
tionally underinclusive.

Motion denied.

West Headnotes

(1} Criminal Law 110 €=>13.1

110 Criminal Law

HOI Nature and Elements of Crime
110k 12 Statutory Provisions

11 0k 13.1 k. Certainly and Definiteness.
Most Cited Cases

(Formerly 1 10kl3. 1(1))

“Void for vagueness doctrine” requires that a
penal statute provide a defendant with adequate no-
tice of the eonduct prohibited, while affording "law
enforcement officials some objective standard to
avoid ‘the possibility that the law will be arbitrarily
enforced’

{2j Constitutional Law 92 €=>1030
92 Constitutional Law

92VI Enforcement of Constitutional Provisions
92VI(C) Determination of Constitutional

Questions

92VI(C)4 Burden of Proof

92k 1030 k. In General. Most Cited

Cases

(Formerly 92k48(l))

Defendant bears the heavy burden of overcom-
ing the presumption of a statute's constitutionality.

{3} Homicide 203 €=>576

203 Homicide

203111 Homieidc in Commission of or with In-
tent to Commit Other Unlawful Aet
203111(A) In General

203k576 k. Constitutional and Statutory
Provisions. Most Cited Cases

(Formerly 203k8)

Use of phrases “in the eourse of’ and “in fur-
therance of’ in the eapital felony murder statute
did not make the statute unconstitutionally vague.
McKinney's Penal Law § 125.27, subd. l(a)(vii).

14} Homicide 203 €=>576

203 Homicide

203111 Homicide in Commission of or with In-
tent to Commit Other Unlawful Act
203111(A) In General

203k576 k. Constitutional and Statutory
Provisions. Most Cited Cases

(Formerly 203k8)

Capital felony murder statute was not irration-
ally under-inclusive because it rendered death-
eligible murder committed during certain felonies,
but excluded other murders committed during
felonies; sufficient reasons existed, including the
level of violence associated with the felony com-
mitted during a murder, to justify the distinctions
drawn by the legislature. McKinney's Penal Law §
125.27, subd. l(a)(vii).

|5{ Homicide 203 €==>576

203 Homieide

203 1 II Homicide in Commission of or with In-
tent to Commit Other Unlawful Act
203111(A) In General

203k576 k. Constitutional and Statutory
Provisions. Most Cited Cases

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1298

Page 2

20435

185 Mtse.2d 490, 713 N,Y,S.2d 256, 2000 N.Y. Slip Op
(Cite as: 185 Misc.2d 490, 713 N.Y.SJd 256)

(Formerly 203k8)

Exclusion of premeditated murders from the
list of death-eligible murders did not render the
capital felony murder statute unconstitutionally
underinclusive. McKinney's Penal Law § 125.27,
subd. l(a)(vii).

**257*490 D, Miehael Murray, Batavia, and Peter
J. Pullano, Rochester, for defendant.

Howard R. Relin, District Attorney of Monroe
County (Michael C. Green and Joanne M. Winslow,
Rochester, of counsel), for plaintiff.

DAVID D. EGAN, J.

Defendant moves this Court to declare Penal
Law § 125.27(l)(a)(vii) unconstitutionally vague
and overbroad because it *491 ineludes certain
phrases that “fail[ ] to receive consistent defini-
tions.” Defendant argues that the phrases ‘‘in the
eourse of and "in furtherance of’ run afoul of his
State and Federal Constitutional protections. See
New York Const., Art I.; U.S. Const., 5th, 6th, 8th
and 14th Amends. Defendant seeks to have this
Court dismiss the First Degree Murder counts of
the indictment, or preclude their application to him.
The People oppose his motion.

[1}(2] The “void for vagueness” doctrine re-
quires that a penal statute provide a defendant with
adequate notiee of the conduct prohibited, while af-
fording “law enforcement officials some objective
standard to avoid ‘the possibility that the law will
be arbitrarily enforced.* ” People v. First Meridian
Planning Carp. t 86 N.Y. 2d 608, 621-22, 635
N.Y,S.2d 144, 658 N.E.2d 1017 (1995), quoting
People v. Bright, 71 N.Y.2d 376, 384, 526
N.Y,S.2d 66, 520 N.E.2d 1355 (1988). Defendant
bears the heavy burden of overcoming the presump-
tion of a statute's constitutionality. Id., at 621-22,
635 N.Y.S,2d 144, 658 N.E.2d 101 7.

[3] For years in the context of New York's non-
capital felony murder statute, Penal Law § 125.25
(3), the phrases “in the course of and “in further-

ance of have implicitly passed constitutional
muster. **258 People v. Bornholdt, 33 N.Y, 2d
75, 350 N.Y.S.2d 369, 305 N.E.2d 461 (1973);
People v. Britt, 212 A.D.2d 1034, 623 N.Y.S.2d 58
(4th Dept. 1995); see also. People v. Couser, 258
A.D.2d 74, 695 N.Y.S.2d 781 (4th Dept. 1999).
Nothing compels a different result under Penal Law
125.27(1 )(a)(vii). Accord People v. Santiago, Mon-
roe County CL, Bristol, J. (January 14, 2000);
People v. Gordon, 175 Misc.2d 67, 77, 667
N.Y.S.2d 626 (Sup.CL, Queens Cty. 1997); People
v. Bell. p. 17 (Sup.Ct., Queens Cty. [Coopcrman, J.]
May 8, 1997); People v. Mateo, 175 Misc.2d 192,
200-01, 664 N.Y.S.2d 981 (Mon .Cty.Ct. 1997).

FN1. The language of Penal Law § 125.27
(l)(a)(vii) is nearly identical to the lan-
guage of Penal Law § 125.25(3). The sole
distinction between the two statutes is the
clement of intent. Specifically, for a
murder to be elevated to a capital offense
under Penal Law § 1 25.27(1 )(a)(vii), it
must be intentionally committed in the
course of, and in furtherance of, a felony.

[4] Defendant also asserts that Penal Law §
125.27(1 )(a)(vii) is irrationally undcr-inelusivc in
that it renders death-eligible murder committed
during eertain felonies, but exeludcs other murders
committed during what Defendant describes as,
“equally serious felonies, and premeditated
murders.” In support, Defendant cites proposed le-
gislation to amend the existing statute to include in-
tentional murder committed during additional
felonies, sueh as digital rape.

Defendant’s argument is incongruous in the
context of this case. Defendant does not argue that
an intentional murder *492 committed during the
course of a rape should not be sanetionable by
death, just that murders committed during other
forms of sexual abuse merit the same sanction. De-
fendant claims that this purported inconsistency
renders the statute arbitrary.

A capital punishment statute need only

© 20 H Thomson Reuters. No Claim to Orig. US Gov. Works.

1299

Page 3

185 Misc.2d 490, 713 N.Y.S.2J 256. <000 N.Y. Slip Op. 20435
(Cite as: 185 Misc.2d 490, 713 N.Y.S.2d 756) .

“genuinely narrow the class of persons eligible for
the death penalty and must reasonably justify the
imposition of a more severe sentence on the de-
fendant compared to others found guilty of murder
Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct.
2733, 77 L.Ed.2d 235 (1983). This court declines to
thrust itself into the role of the legislature and de-
termine which murders warrant the sanction of
death. See Tuilaepa v. California, 512 U.S. 967,
974, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994);
Gregg v. Georgia, 428 U.S. 153, 174-76, 96 S.Ct.
2909, 49 L.Ed.2d 859 (1976).

[5] Sufficient reasons exist, including the level
of violence associated with the felony committed
during a murder, to justify the distinctions drawn
by the legislature. Accord People v. Bell, supra, at
p. 15- 16; cf. Gregg v. Georgia, supra.; Gray v. Lu-
cas, 677 F.2d 1086, 1104 (5th Cir.1982) (a legis-
lature's designation of certain death eligible crimes
should be given deference, unless clearly wrong).
For the same reason this Court is not persuaded that
the exclusion of premeditated murders from the
list of death-eligible murders renders the statute
unconstitutional.

Defendant also argues that Penal Law § 125.27
(l)(a)(vii) has an unconstitutional disparate racial
impaet. This Court finds this argument is wholly
without merit. People v. Hale, 173 Misc.2d 140,
159-60, 661 N,Y.S.2cl 457 (Kings Cty. Sup.
Ct. 1997).

Defendant’s motion is denied.

N.Y. Sup., 2000.

People v. Owens

185 Misc.2d 490, 713 N.Y.S.2d 256, 2000 N.Y.
Slip Op. 20435

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1300

Westiaw.

Page 1

Not Reported in N.Y.S.2d, 2000 WL 33421396 (N.Y.Snp.),2000 N.Y. Slip Op. 4001 l(U)

(Cite as: 2000 WL 33421396 (N.Y.Sup.))

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK,
v.

JOHN OWENS, Defendant.

Ind. # 547/99 Consolidated with #414/99
DATED: August 17, 2000, Rochester, New York

HOWARD R. RELIN, ESQ. Monroe County Dis-
trict Attorney MICHAEL C. GREEN, ESQ. Special
Assistant District Attorney DAVID A. FOSTER,
ESQ. Assistant District Attorney

D. MICHAEL MURRAY, ESQ. PETER J. PUL-
LANO, ESQ. Attorneys for the Defendant

EGAN, J.:

*1 This is a death penalty case. The District At-
torney's office filed a Notice oflntent To Seek The
Death Penalty pursuant to CPL §250.40 on January
24, 2000.

Defendant John Owens is eharged under In-
dictment No. 547/99 with crimes against four vic-
tims arising out of separate incidents that occurred
within a six month period between 1998-1999.
Counts One and Three arise out of the murder of
Rosemarie Constantino, who was killed in the
course of a rape at Driving Park Avenue in the City
of Rochester on April 28-29, 1999, and charge De-
fendant with Murder, First Degree (Penal Law
§ 1 25.27 (a)(vii) and (b)), and Murder, Second De-
gree (Penal Law §125.25 (1)), respectively. Counts
Two and Four of the same Indietment and Count
One of Indietment No. 414/99 (previously consolid-
ated by Order of this Court dated November 22,

1999) arise out of the murder and rape of Sherry
Tuthill at 200 Merlin Street, City of Rochester on
May 30 - June 1, 1999. Defendant is charged with
Murder, First Degree (Penal Law §125.27 (a)(vii)
and (b)). Murder, Second Degree (Penal Law
§125.25 (1)) and Reckless or Depraved Indifference
Murder, Second Degree (Penal Law §125.25 (2))
relating to this incident. Counts Five and Six both
charge Defendant with Rape, First Degree (Penal
Law §130.35 (1)), arising out of the alleged rapes
of“R. L.” on June 6, 1999. The final Count of the
indictment alleges that Defendant raped “S. C,” on
Christmas Eve 1 998, charging Rape, First Degree (
Penal Law §130.35 (1)).

Defendant now moves for an Order granting
severance, and separate trials with respect to each
of the victims. This Court's analysis is guided by
CPL §200.20, and the eases construing it, and not
the oft-cited notion of “heightened” due process, as
Defendant argues.

All the homicides charged in the indictment, al-
though based on separate criminal transactions, “are
defined by the same or similar statutory provisions
and consequently are the same or similar in law” (
CPL §200.20 (2)(e)) t and thus, are properly join-
able. See People v. Lane, 56 NY 2d 1,7 (1982); see
also, People v. Bruce, 216 AD2d 913 (4th Dept.
1995) (affirming this Court's decision). Nor does
this Court Find, as Defendant contends, that it must
sever the counts relating to the “R. L.” and ”S. C.”
rapes from those relating to the Constantino and
Tuthill murders, because they are not “similar in
law.” The Appellate Division for the Fourth De-
partment rejected a virtually identical claim in
People v. Brown, 254 AD2d 781 (4th Dept, 1998)
(Finding the burglary of one vietim, and the burg-
lary/homicide and attempted rape of a second vie-
tim were “the same or similar in law” within the
meaning of CPL §200.20 (2)(c)),

*2 While a court may grant a severance upon a
showing of“good cause” of any offense properly

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1301

Page 2

Not Reported in N,Y.S.2d, 2000 WL 33421396 (N.Y.Siip.), 2000 N.Y. Slip Op. 4001 1(U)

(Cite asi 2000 WL 33421396 (N.Y.Siip.))

joined under CPL §200.20 (2)(c), this Court finds
that Defendant has failed to make a convincing
showing * that he would be unduly and genu-
inely prejudiced by the joint trial of all charges
arising out . of both the Constantino and Tuthill
murders, and the “R. L.” rapes. See CPL §200.20
(3) (a), (b); People v. Lane, supra, at 8-9. Nor is
this Court persuaded that the joinder of capital and
non-capital offenses in the same trial will imper-
missibly taint the sentencing determination of the
jury in violation of CPL §400.27. Cf. People v.
Hansen, unpublished, pp. 13-14 (Albany Cty. Ct.
[Rosen, J.] September 1 1, 1997).

FN1. Defendant, inter alia, highlights so-
eial science studies and empirical research
suggesting the joinder for trial of two or
more offenses has a prejudicial effect on
the jury's verdict in violation of a Defend-
ant's right to a fair trial. The People refute
the validity of those studies.

This Court, however, docs find a substantial
difference with respect to the quantum of the
People's proof against Defendant regarding the “S.
C.” rape, compared to the other crimes charged. See
CPL §200,20(3 )(a); People v Sable, 138 A.D.2J
234 (1st Dept. 1988). Sinee there is “a substantial
likelihood that the jury would be unable to consider
separately the proof as it relates to [that] offense,”
the Seventh Count shall be severed, and a separate
trial granted. See Id.

Accordingly, Defendant's motion for severanee
and separate trials is granted as to the Seventh
Count of the Indictment No, 547/99, charging Rape,
First (Penal Law §130.35 (1)) upon the vietim "S.
C.’\ Defendant's motion is denied as to all remain-
ing eounts of the Indictment.

This shall constitute the Opinion, Decision and
Order of this Court.

Not Reported in N.Y.S.2d, 2000 WL 33421396
(N.Y.Siip.), 2000 N.Y. Slip Op. 4001 1(U)

END OF DOCUMENT

ZYNY

People v. Owens

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1302

Westiaw.-

Page I

Not Reported in N.Y.S.2d, 2000 WL 33421397 (N.Y.Sup.), 2000 N.Y. Slip Op. 40012(U)

(Cite as; 2000 WL 33421397 (N.Y.Sup.))

“unbridled discretion” denounced in Penry v.
Lynaugh, 492 US 302, 326 (1989).

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK,
v.

JOHN F. OWENS, Defendant.

Ind. #547/99 Consolidated with #414/99
DATED; August 30, 2000, Rochester, New York

HOWARD R. RELIN, ESQ. Monroe County Dis-
trict Attorney MICHAEL C. GREEN, ESQ. Special
Assistant District Attorney DAVID A. FOSTER,
ESQ. Assistant District Attorney

D. MICHAEL MURRAY, ESQ. PETER J. PUL-
LANO, ESQ. Attorneys for the Defendant

EGAN, J.:

*1 This is a death penalty case. The District At-
torney’s office filed a Notiee of Intent To Seek The
Death Penalty pursuant to Criminal Procedure Law
(CPL) §250.40 on January 24, 2000.

Defendant challenges the constitutionality of
CPL §400.27 (II) (a) arguing its sceond clause
provides for a vague and stand aidless determination
of punishment by a sentencing jury. CPL §400.27
(1 1) (a) provides in part; “The jury may not direct
imposition of a sentence of death unless it unanim-
ously finds beyond a reasonable doubt that the ag-
gravating factor or factors substantially outweigh
the mitigating factor or factors established, if any,
and unanimously determines that the penalty of
death should be imposed.” Id. Defendant specific-
ally claims that when the jury undertakes the
second tier determination, it is not guided by ob-
jective standards, and thus is allowed the

To pass constitutional muster, the death penalty
may "not be imposed under sentencing procedures
that create[ ] a substantial risk that it [will] be in-
flicted in an arbitrary and capricious manner.”
Gregg v. Georgia, 428 US 153, 188 (1976)
(reaffirming the holding in Furman v. Georgia, 408
US 238 (1972).) Thus, a “State must establish ra-
tional criteria that narrow the deeisionmaker's judg-
ment as to whether the circumstances of a particular
defendant's case meet the threshold.” McClcskcy v.
Kemp, 481 US 279, 305 (1987).

The capita) sentencing scheme meets the stand-
ards of the New York and United States Constitu-
tions. Accord, People v. McIntosh, 178 Misc. 2d
433 (Dutchess Cty. Ct. 1998); People v. Harris, 177
Mise. 2d 368 (Kings Cty. Ct. 1998); People v.
Mateo, 175 Misc 2d 192, 226 (Mon. Cty. Ct. 1997).
Penal Law §125.27(1) “ 'genuinely narrow[$] the
elass of persons eligible for the death penalty* ” by
delineating twelve distinct aggravating factors that
raise the gravity of their crimes above other
murders. See Lowenficld v. Phelps, 484 US 231,
244 (1988) . CPL §400.27 then employs a bal-

ancing test, justifying the imposition of a death sen-
tence in only those cases where those aggravating
factors proved at trial substantially outweigh all
mitigating evidence. See CPL §§400.27(3), (6), and
(11). CPL §400.27(3) provides for an individual-
ized sentencing determination by allowing the De-
fendant to challenge any aggravating factor by
presenting mitigating evidence “concerning the
erime, the defendant’s state of mind or condition at
the time of the crime. . even in hearsay form. See
CPL §400.27(9) (f). An individual juror may con-
sider any mitigator, if it was proved by Defendant
to the satisfaction of such juror by a preponderance
of the evidence. Unanimity is not required. CPL
§400.27 (II) (a).

FN1. As the United States Supreme Court

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1303

Page 2

Not Reported in N.Y.S.2d, 2000 WL 33421397 (N-Y.Sup.'J, 2000 N.Y. Slip Op. 40012(U)

(Cite as: 2000 WL 33421397 (N.Y.Snp .))

noted there is . .no reason why this nar-
rowing function may not be performed by
jury findings at either the sentencing phase
of the trial or the guilt phase.” Lowenficld,
supra, at 244-45,

*2 The Supreme Court has held that such a
weighing process alone is sufficient for the imposi-
tion of a death sentence. See Blystone v.
Pennsylvania, 494 US 299 (1990); Boyde v. Cali-
fornia, 494 US 370 (1990). Instead CPL §400.27
(11) (a) provides an additional safeguard For a de-
fendant facing the death penalty. The weighing pro-
cess is a prerequisite to the senteneing jury's
“unanimous dctcimin[ation] that the penalty of
death should be imposed." Id, CPL §400.27 (1 1) (a)
thus empowers the jury to exercise mcrey and de-
cline to impose the death penalty even if it has
found, after weighing both aggravating and mitigat-
ing factors, that death is otherwise warranted Des-
pite Defendant's arguments otherwise, no further
guidelines arc constitutionally required at this stage
of the jury’s deliberations. See Tuilaepa v. Califor-
nia, 512 US 967, 979-80 (1994) (“[a] capital sen-
tencer need not be instructed how to weigh any par-
ticular Fact in the eapital sentencing decision.”)

Defendant's argument that CPL §400.27 (11)
undermines appellate review is also without merit.
Subparagraph (b) of that section specifically
provides, “[i]f the jury directs imposition of either a
sentence of death or life imprisonment without pa-
role, it shall specify on the record those mitigating
and aggravating factors considered and those mitig-
ating factors established by the defendant, if any.”
CPL §400.27 (1 1) <b).

Defendant also argues that since CPL §400.27
(1 1) (a) provides for an individual jurofs considera-
tion of mitigating factors it is unconstitutionally
permissive. The statute states that "[a]ny member
or members of the jury who find a mitigating faetor
to have been proven by the defendant by a prepon-
derance of the evidence may consider sueh factor
established regardless of the number of jurors who
concur that the factor has been established.” Id.

(Emphasis added.) Defendant claims that the use of
the permissive word "may” instructs a juror not to
consider a mitigating faetor even if he believes it
was established. This Court finds that the plain
meaning of the statute actually bodes in favor of the
Defendant, by eneouraging individual jurors to
stand by their personal convictions, “regardless of
the number of jurors who concur” with them. See
Id.

Defendant’s motion is denied in its entirety.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v. Owens

Not Reported in N.Y.S,2d, 2000 WL 33421397
(N.Y.Sup.), 2000 N.Y. Slip Op. 40012(U)

END OF DOCUMENT

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1304

Westiaw,

Page 1

Not Reported in N.Y.S.2d, 2000 WL 33421398 (N.Y.Sup.), 2000 N.Y. Slip Op. 400I3(U)

(Cite as: 2000 WL 33421398 (N.Y.Sup.))

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK
V.

JOHN F. OWENS, Defendant.

Ind. #547/99 Consolidated with #414/99
DATED: August 31, 2000, Rochester, New York

HOWARD R, RELrN, ESQ. Monroe County Dis-
trict Attorney MICHAEL C. GREEN, ESQ. Assist-
ant District Attorney DAVID A. FOSTER, ESQ.
Assistant District Attorney

D. MICHAEL MURRAY, ESQ. PETER J. PUL-
LANO, ESQ. Attorneys for the Defendant

EGAN, J.:

*1 This is a death penalty case. Defendant
John F. Owens is charged with two counts of
Murder in the First Degree, three counts of
Murder in the Second Degree, and three counts of
Rape in the First Degree. This Court severed for tri-
al one count of Rape, First Degree relating to vic-
tim “S,C.” by Order and Decision dated August 17,
2000, and entitled DEF-32. The District Attorney's
office filed a Notice of Intent To Seek The Death
Penalty pursuant to Criminal Procedure Law
(“CPL”) §250.40 on January 24, 2000. With no bail
request made to date. Defendant is currently being
held in the Monroe County Jail awaiting his trial.

Defendant renews his request for this Court to
inspect and release the stenographic minutes of the
Grand Jury proceedings pursuant to CPL §§210.30
and 190.25(4)(a), and asks this Court for an order
dismissing or reducing the Indictment pursuant to

CPL §§210.20 and 210.35. This Court denied De-
fendant's request to release the Grand Jury minutes,
and did not reduce or dismiss the Indictment in its
Order and Decision dated April 19, 2000 and en-
titled DEF-11.

This Court’s sceond in camera review of the
Grand Jury minutes and exhibits revealed nothing
different than its first: the Grand Jury proceeding
was not defective, and the legal instructions to the
Grand Jury were properly recorded and legally suf-
ficient. See People v. Calbud, 49 NY2d 389 (1980).
No arguments advanced by the Defense has con-
vinced this Court that the release of the minutes is
required under CPL §210.30(3) to assist this Court
in its determination.

Defendant urges, into 1 alia, that the Indictment
should be dismissed because the Grand Jury
presentation was conducted before fewer than six-
teen jurors, or fewer than twelve jurors heard all the
evidence and voted for the Indictment. The Grand
Jury presentation was conducted before twenty-one
jurors, and more than twelve voted for Indictment
No. 547/99. The Grand Jury presentation was con-
dueled before twenty-two jurors, and more than
twelve voted for Indictment No 414/99, which this
Court subsequently consolidated with Indictment
No. 547/99, by Order and Decision dated Novem-
ber 22, 1999, and entitled DA-l.

Accordingly, Defendant's motion to dismiss or
reduce the Indictment pursuant to CPL §§210.30 is
denied. Defendant's renewed motion to release the
Grand Jury minutes pursuant to CPL §§210.20 and
210.35 is also denied.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v. Owens

Not Reported in N.Y.S.2d, 2000 WL 33421398
(N.Y.Sup.), 2000 N.Y. Slip Op. 40013(U)

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1305

We'stiaw.

Page i

Not Reported in N.Y.S.2d, 2000 WL 33421399 (N.Y.Sup.), 2000 N.Y. Slip Op, 400J4(U)

(Cite as: 2000 WL 33421399 (N.Y.Sup.))

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK
v.

JOHN F. OWENS, Defendant.

Ind. #547/99 consolidated with #414/99
DATED: September 14, 2000, Rochester, New
York

HOWARD R. RELIN, ESQ. Monroe County Dis-
trict Attorney MICHAEL C. GREEN, ESQ. Assist-
ant District Attorney DAVID A. FOSTER,. ESQ.
Assistant District Attorney

D. MICHAEL MURRAY, ESQ. PETER J. PUL-
LANO, ESQ. Attorneys for the Defendant

EGAN, J.:

*1 This is a death penalty case. Jury selection
commenced on September 6, 2000.

Defendant moves for an order to individually
voir dire each prospective juror in this case con-
cerning such veni reperson’s qualifications to serve
as a trial juror. CPL §270.16(1) provides that in a
capital case, “the court shall, upon motion of either
party, permit the parties, commencing with the
people, to examine the prospective jurors individu-
ally and outside the presence of the other prospect-
ive jurors regarding their qualifications to serve as
jurors.” Id. The People take no position on Defend-
ant’s motion.

Defendant’s motion entitled DEF-46 is granted,
and individual voir dire shall commence on or after
September 27, 2000.

Under the veil of heightened due process that
Defendant alleges should be afforded all capital
murder cases. Defendant seeks to alternate the or-
der of the initial voir dire of eaeh of the prospective
jurors between the District Attorney and the de-
fense. In support, Defendant relies on soeial science
studies that suggest that by questioning prospective
jurors first, the District Attorney, will impart upon
them an indelible impression in favor of the death
penalty.

CPL §270.15(l)(c) mandates that “[t]he court
shall permit both parties, commencing with the
people, to examine the prospective jurors . . .** Id.
(Emphasis added.) Defendant avers that CPL
§270.15(l)(c)’s requirement that the People com-
mence voir dire, only applies to the initial question-
ing of the first prospective juror. A plain reading of
the statute and traditional practice suggests the con-
trary. People v. Arroyo, 178 Misc. 2d 362, 365
(Schoharie Cty. Ct. 1998); People v. Mateo, unpub-
lished p.6 (Mon. Cty. Ct. [Connell, J.] September
17, 1998). This Court once again declines to thrust
itself into the role of the legislature to deviate from
the proscribed order of voir dire set forth in CPL
§270.15(l)(c).

Defendant's motion entitled DEF-43 is denied.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v. Owens

Not Reported in N.Y.S.2d, 2000 WL 33421399
(N.Y.Sup.), 2000 N.Y. Slip Op. 400I4(U)

END OF DOCUMENT

201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1306

Westiaw.

Not Reported in N.Y.S.2d, 2000 WL 33421400 (N.Y.Sup.), 2000 N.Y. Slip Op. 40O15(U)
(Cite as: 200 fi WL 33421400 (N.Y.Sup.))

Page 1

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING rN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK
v.

JOHN F. OWENS, Defendant.

Ind. #547/99 Consolidated with Ind. #414/99

DATED: September 14, 2000, Rochester, New
York

HOWARD R. RBLTN, ESQ. Monroe County Dis-
trict Attorney MICHAEL C. GREEN, ESQ. Assist-
ant District Attorney DAVID A. FOSTER, ESQ.
Assistant District Attorney

D. MICHAEL MURRAY, ESQ. PETER J. PUL-
LANO, ESQ. Attorneys for the Defendant

EGAN, J.:

*1 This is a death penalty case. Jury selection
recently commenced. Defendant John Owens is
charged under Indictment No. 547/99 with crimes
against four victims arising out of separate incid-
ents that occurred within a six month period
between 1998-1999. Counts One and Three arise
out of the alleged rape and murder of Rosemarie
Constantino on April 28-29, 1999, and charge De-
fendant with Murder, First Degree (Penal Law
§125.27 (a)(vii) and (b)), and Murder, Second De-
gree (Penal Law §125.25 (1)), respectively. Counts
Two and Four of the same Indictment and Count
One of Indictment No. 414/99 (previously consolid-
ated by Order of this Court dated November 22,
1999) arise out of the alleged rape and murder of
Sherry Tuthill on May 30 - June 1, 1999. Defendant
is charged with Murder, First Degree (Penal Law

§125.27 (a)(vii) and (b)). Murder, Second Degree (
Penal Law §125.25 (1)) and Reckless or Depraved
Indifference Murder, Second Degree (Penal Law
§125.25 (2)) relating to Tuthill. Counts Five and
Six both charge Defendant witli Rape, First Degree
(Penal Law §130.35 (1)), arising out of the alleged
rapes of “R. L.” on June 6, 1999. The final Count
charges Defendant with Rape, First Degree (Penal
Law §130.35 (I)) of “S. C.” on Christmas Eve
1998. By previous Order of this Court the Rape,
First Degree eharge relating to victim “S.C." was
severed for trial.

Defendant argues that the impaneling of a sep-
arate sentencing jury is inevitable in this case be-
cause Defendant will be tried for crimes arising out
of three distinct transactions, with three separate
victims. Defendant thus once again challenges the
so-called death qualification of the guilt-phase jury
pursuant to CPL §270.20. CPL §270.20(1 )(D per-
mits the removal for eause of a prospective juror
who “entertains sueh conscientious opinions either
against or in favor of such punishment as to pre-
clude sueh juror from rendering an impartial ver-
dict" or determining a sentence pursuant to CPL
§400.27. Id.

In a decision entitled DEF-15 &I6, this Court
found the life and death qualification of a capital
jury constitutionally sound under both our state and
federal constitutions. People v. Owens, DEF-15 &
16, unpublished (Sup. Ct, Mon. Cty. [Egan, J.] July
7, 2000). Nothing warrants a change in this Court's
earlier deeision.

Nor is this Court convinced that impanelinent
of a separate sentencing jury is inevitable. Criminal
Procedure Law §400.27(2) provides “[bjefore pro-
ceeding with the jury that found the defendant
guilty, the eourt shall determine whether any juror
has a state of mind that is likely to preclude the jur-
or from rendering an impartial decision based upon
the evidence adduced during the proceeding." Id.
Defendant may apply for a separate sentencing

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

Not Reported in N.Y.S.2d, 2000 WL 33421400 (N Y Sup.), 2000 N.Y Slip Op. 40015(U)
(Cite as: 2000 WL 33421400 (N.Y.Sup.))

jury, if neeessary, at that stage of the trial. Sueh ap-
plication before that time would be premature. See
People v, Mateo, unpublished, p. 3 ( Monroe Cty.
Ct. [Connell, J .] Sept. 17, 1998).

*2 Defendant’s motion is denied.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v. Owens

Not Reported in N.Y.S.2d, 2000 WL 33421400
(N.Y.Sup.), 2000 N.Y. Slip Op. 40015{U)

END OF DOCUMENT

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1308

Westlaw.

Page I

Not Reported in N.Y.S.2d, 2000 WL 33421403 (N.Y.Sup.), 2000 N.Y. Slip Op. 4001 8(U)

(Cite as: 2000 WL 33421403 (N.Y.Sup.))

c

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK
v.

JOHN F. OWENS, Defendant.

Ind. #547/99 Consolidated with Ind. #414/99
DATED: September 29, 2000, Roehester, New
York

HOWARD R. REL1N, ESQ. Monroe County Dis-
trict Attorney MICHAEL C. GREEN, ESQ. Assist-
ant District Attorney DAVID A. FOSTER, ESQ.
Assistant District Attorney

D. MICHAEL MURRAY, ESQ. PETER J. PUL-
LANO, ESQ. Attorneys for the Defendant

EGAN,).:

*1 In this unusual motion the People seek an
order dismissing the charge of Reckless or De-
praved Indifference Murder, Second Degree (Penal
Law §125.25 (2)) pursuant to Criminal Procedure
Law (“CPL”) §210.40 in a capital ease. This Court,
upon the People’s request, consolidated Indictment
No. 414/99 with Indictment No. 547/99, charging
seven eounts, including two counts of Murder,
First Degree (Penal Law §125.27 (a)(vii) and (b)).
People v. Owens, DA-1, unpublished (Mon. Cty.
Ct. [Egan, J.} November 22, 1999.) Counts Two
and Four of Indictment No. 547/99 and Count One
of Indictment No. 414/99 arise out of the murder
and rape of Sherry Tuthill on May 30 - June 1,
1999. Defendant is charged respectively with:
Murder, First Degree (Penal Law §125.27 (a)(vii)
and (b)). Murder, Seeond Degree (Penal Law

§125.25 (1)) and Reekless or Depraved Indifferenee
Murder, Seeond Degree (Penal Law §125.25 (2))
relating to this incident.

In support, the People argue that dismissing the
depraved indifference murder charge will
“streamline the ease for the trial . . . and . . . avert
the possibility of inconsistent verdicts.” Defendant
opposes the People’s motion arguing, inter alia, that
the dismissal of the charge would deprive the jury
of an alternate verdict to Murder. First Degree (
Penal Law §125.27 (a)(vii) and (b))

FN1. Defendant also argues that the lan-
guage of CPL §210.40 (3) limits the
People's right to seek a dismissal in the
furtherance of justiee to only indictments,
and not counts thereof. Without reaching
the issue, this Court finds such a narrow
construction of the statute would render
subparagraph three in conflict with sub-
paragraph one. Cf. People v, Panibtanci,
134 Mise. 2d 274, 276 (Sup. Ct. Mon. Cty.
1986), citing 22A CJS, Criminal Law,
§456; 21 Am Jtir 2d, Criminal Law, §512.

A court’s power to dismiss pursuant to CPL
§210.40, evolved from the common-law power of
nolle prosequi under which the prosecuting attor-
ney, at his sole discretion, eould choose not to pro-
seeute a case even after indictment, v. Wharton’s
Criminal Law and Procedure, pp. 225-28 (1957);
People v. Quill, II Mise. 2d 512, 513 (King Cty.
Ct. 1958). Under CPL §210.40’s predecessor provi-
sion, Code Crim. Pro. §671, the power to dismiss
an indictment was transferred from the prosecutor
to the court. Since the honest labors of a Grand Jury
should not be lightly set aside, CPL §210.40 allows
the letter of the law to suceumb to the spirit of
justice only in rare eircumstanees. People v. Dav-
is, 55 Mise. 2d 656, 659 (Sup. Ct. N.Y. Cty. 1969);
People v. Williams, 140 Mise. 35, 36 (Otsego
Cty.Ct. 1931).

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1309

Page 2

Not Reported in N.Y,S.2d, 2000 WL 33421403 (N.Y.Sup.), 2000 N.Y. Slip Op, 4001 S(T)

(Cite as: 2000 WL 33421403 (N.Y.Sup.))

*2 The People argue the catch-all provision of
CPL §210.40 (1) (j), which allows a court to con-
sider any “relevant fact indicating that a judgment
of conviction would serve no useful purpose” in
evaluating dismissal, vests this Court with authority
to grant the requested dismissal. Id. This Court is
not persuaded that a “judgment of conviction [on
the depraved indifference murder charge) would
serve no useful purpose,” See Id.

This Court is also not convinced that dismissal
is necessary to avert the possibility of inconsistent
verdicts, as the People argue. Rather, this Court is
confident that a jury will follow standard caution-
ary instructions. See People v. Berg, 59 NY2d 294,
299-300 (1983); but cf. People v. Gallagher, 69
NY2d 525 (1987), Further, this Court finds that dis-
missing the depraved indifference murder charge
will not streamline the case for trial, as the People
suggest. Two other counts of the consolidated in-
dictment arise out of the murder and rape of the
same victim, and will require essentially the same
proofs,

The nine other factors enumerated in CPL
FN2

§210.40 also militate against dismissal. This
Court thus finds no compelling reason for dismiss-
ing Count One of Indictment No. 414/99. This
Court upheld the sufficiency of the findings of the
Grand Jury, not on just one, but two occasions.
People v. Owens, DBF-26 & 33, unpublished (Sup.
Ct, Mon. Cty. [Bgan, J.J August 31, 2000); People
v. Owens, 184 Misc. 2d 597 (Mon. Cty. Ct. 1999).
This Court therefore will not invade the province of
the Grand Jury, and undo their “honest labors” un-
dertaken at the People's own behest. See People v.
Williams, supra.

FN2. CPL §210.40 (1) directs the court to
consider, in its quest for “some compelling
factor, consideration or circumstance
clearly demonstrating that conviction of
prosecution of the defendant upon such in-
dictment or count would constitute or res-
ult in injustiee * * *(a) the seriousness and
circumstances of the offensc;(b) the extent

of harm caused by the offetise;(c) the evid-
ence of guilt, whether admissible or inad-
missible at trial;(d) the history, character
and condition of the defendant;(e) any ex-
ceptionally serious misconduct of law en-
forcement personnel in the investigation,
arrest and prosecution of the defendant;(f)
the purpose and effect of imposing upon
the defendant a sentence authorized for the
offcnse;(g) the impact of a dismissal upon
the confidence of the public in the criminal
justice systcm;(h) the impact of a dismissal
on the safety or welfare of the com-
munity;^) where the court deems it appro-
priate, the attitude of the complainant or
victim with respect to the motion;(j) any
other relevant fact indicating that a judg-
ment of conviction would serve no useful
purpose.”

*3 The People's motion to dismiss Count One
of Indictment No. 414/99 in the furtherance of
justice is denied.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v. Owens

Not Reported in N.Y.S.2d, 2000 WL 33421403
(N.Y.Sup.), 2000 N.Y. Slip Op. 40018(U)

END OF DOCUMENT

€> 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1310

Westiaw,

Page 1

Not Reported in N.Y.S.2d, 2000 WL 33421405 (N.Y.Sup.), 2000 N.Y. Slip Op. 40020(U)

(Cite as: 2000 WL 33421405 (N.Y.Sup.))

NOT APPROVED BY REPORTER OF DE-'
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK
v.

JOHN OWENS, Defendant.

Tnd. #547/99 Consolidated with #414/99
DATED: October 6, 2000, Rochester, New York

On Behalf of the People: HOWARD R. RELIN,
ESQ. Monroe County District Attorney MICHAEL
C. GREEN, ESQ. Assistant District Attorney DAV-
ID A. FOSTER, ESQ. Assistant District Attorney

On Behalf of the Defendant: D. MICHAEL MUR-
RAY, ESQ. PETER J. PULLANO, ESQ. Attorneys
for the Defendant

EGAN, J.:

*1 A Dunaway, Mapp, Wade and Huntley hear-
ing was conducted on July 31, August 1, August 2,
and August 11, 2000 in response to Defendant
John Owens' request for various relief. Sec People
v. Owens, DEF-29, DEF-30 and DEF-34, unpub-
lished (Sup. Ct. Mon. Cty. [Egan, J.], July 19,
2000); Dunaway v. New York, 442 US 200 (1979);
United States v. Wade, 388 US 218 (1967); Mapp
v. Ohio, 367 US 643 (1961); People v. Huntley, 15
NY 2d 72 (1965). The following constitutes this
Court's findings of fact and conclusions of law.

Defendant is charged under Indictment No.
547/99 with crimes against four victims arising out
of separate incidents that occurred within a six
month period between 1998-1999. Counts One and
Three arise out of the alleged rape and murder of
Rosemary Constantino on April 28-29, 1999, and

eharge Defendant with Murder, First Degree (Pen-
al Law §125.27(a)(vii) and (b)), and Murder,
Seeond Degree (Penal Law §125.25(1)), respect-
ively. Counts Two and Four of the same Indictment
and Count One of former Indictment No, 414/99
arise out of the alleged rape and murder of Sherry
Tuthill on May 30- June 1, 1999. See People v.
Owens, DA-I, unpublished (Mon. Cty. Ct. [Egan,
J.] November 22, 1999) (wherein this Court consol-
idated Indictment No. 547/99 with Indictment
No.4 14/99). Defendant is charged with Murder,
First Degree (Penal Law §125.27(a)(vii) and (b)),
Murder, Second Degree (Penal Law §125.25(1))
and Reckless or Depraved Indifference Murder,
Second Degree (Penal Law §125.25 (2)) relating to
Tuthill. Counts Five and Six both charge Defendant
with Rape, First Degree (Penal Law §130.35(1)),
arising out of the alleged rapes of “R.L." on June 6,
1999. The final Count charges Defendant with
Rape, First Degree (Penal Law §130.35(1)) of
"S.C.” on Christmas Eve 1998. By previous Order
of this Court Ihc Rape, First Degree charge relating
to victim “S.C.” was severed for separate trial.

The Court has heard, and finds credible, the
testimony of People's witnesses. Investigator An-
thony Campione, Officer Mark Wiater, Officer
Nicholas Mazzola, Officer Charles Gorman, Invest-
igator Michael VanRoo, Sergeant John Gropp, In-
vestigator Gary Galelta, Officer Brad Goatcr,
Deputy Dean Caifano, Officer Paul Bushart, Officer
Philip McTigue, Investigator Thomas Janus, Invest-
igator Joseph Dominick, Investigator Terrance
Sheridan and Investigator Evelyn Baez.

On December 24, 1998, at about 5:25a.m., Of-
ficer Nicholas Mazzola of the Rochester Police De-
partment went to 7 Beach Street in Rochester in re-
sponse to a report of rape made by S.C. Defendant
John Owens answered the door, indicated he knew
S.C., said she was at his residence earlier looking
for money and that they had sexual relations at her
request. The statements of Defendant to Officer
Mazzola were procured at the investigatory stage of

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1311

Page 2

Not Reported in N,Y.S.2d, 2000 WL 33421405 (N.Y.Sup.), 2000 N.Y. Slip Op. 40020(U)

(Cite as; 2000 WL 33421405 (N.Y.S up.))

the rape report during a “threshold police inquiry.”
Defendant was not in custody. See People v. Huff-
man, 41 NY2d 29, 34 (1976); People v. Mallory,
175 AD2d 623 (4th Dept. 1991).

*2 On the same day about 5:30a.m. Defendant
voluntarily submitted to a show-up at 55 Saranac
Street, Rochester at the request of Offieer Mark
Wiater and in front of S.C. who identified the De-
fendant. The facts reveal a rapidly unfolding report
of erime. The show up was in close physical and
temporal proximity to the erime. See People v. Du-
uvon, 77 NY2d 541, 543 (1991); People v. Rupert,
192 AD2d 1072 (4th Dept. 1993). There was noth-
ing unduly suggestive about the show-up or the
procedure used for the show-up. See United States
v. Wade, 388 US 218 (1967). The show-up was
confirmatory. See People v. Rodriguez, 79 NY2d
445 (1992). The witness S.C. has an independent
basis for in-court identification of the Defendant.
Cf. People v. Ballot, 20 NY2d 600 (1967).

Defendant was arrested after S.C. identified
him as the alleged rapist and taken to the police sta-
tion at Clinton Section in Rochester. This Court
finds that the poliee had probable cause to arrest
Defendant after the S.C, show-up identification.
New York v. Giles, 239 AD2d 936, 937 (4 th Dept.
1997); People v. Muldvow, 222 AD2d 1076 (4th
Dept. 1995).

At about 6:16 a.m. at the station Defendant was
advised of his Miranda warnings from a standard
notification and waiver form (People's Exhibit No.
I). See Miranda v. Arizona, 384 US 436 (1966). He
understood his rights and made a knowing, intelli-
gent and voluntary waiver of those rights. See
People v, Bradley, 195 AD2d 995 (4th Dept. 1993).
There were no threats, promises or force used at
any time to induce him to give up his rights and
talk to the police. Cf. People v. Tarsia, 50 NY2d 1,
22 (1980). Defendant made oral statements and
signed a written statement at 7:08 a.m. and was re-
leased shortly thereafter. Using a test of beyond a
reasonable doubt, this Court finds that at no time
during the events of December 24, 1998 was the

Defendant deprived of his rights under our federal
or state Constitutions, statutes or case law.

Four months later on April 29, 1999, the
Rochester Police Department discovered the body
of Rosemary Constantino on the embankment of the
Genesee River gorge, near the Driving Park bridge.
The same day Earl Gaines met with Investigator
Anthony Campione and told him he observed a
light-skinned, black man talking with a small white
woman the night before, near the bridge. As Mr.
Gaines crossed the bridge, he heard a girl scream-
ing loudly.

On June 3, 1999 Investigator Campione
showed a six person photo array (People's Exhibit
No. 10) to Earl Gaines at 672 Parsclls Avenue,
Rochester. Gaines identified the Defendant as the
Afriean- American male he observed on April 28,
1999. There was nothing unduly suggestive about
the array or the procedure used in displaying it to
Gaines. See People v. Sieteski, 241 AD2d 926, 928
(4 th Dept. 1997); see also, People v. Chipp, 75
NY2d 327 (1990). The Gaines photo array identi-
fication was confirmatory and Gaines has an inde-
pendent basis for in-eourt identification of the De-
fendant. See People v. Rodriguez, 79 NY2d 445
(1992). Gaines also provided the police with a sup-
porting deposition (People's Exhibit No. 11).

*3 On June 4, 1999 Investigator Joseph Domin-
ick met with George Mitehell an inmate at the
Monroe County Jail, and showed him a six person
photo array (People's Exhibit No. 16). Mitchell
identified the Defendant. There was nothing unduly
suggestive about the array or the procedure used in
displaying it to Mitchell. See People v, Sieteski,
supra; see also. People v. Chipp, supra. The
Mitehell photo array identification was confirmat-
ory and Mitehell has an independent basis for in-
eourt identification of the Defendant. See People v.
Rodriguez, supra.

On June 4, 1999 Investigator Campione
showed a six person photo array (People's Exhibit
No. 10) to Rayjohn MeClurkin at 13 Burbank

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1312

Page 3

Not Reported in N Y.S.2d, 2000 WL 33421405 (N.Y.Sup.), 2000 N.Y. Slip Op. 40020(U)

(Cite as: 2000 WL 33421405 (N.Y.Sup.))

Street, Rochester. McClurkin said that he couldn't
be sure, but the Defendant looked like the man that
he saw coming up out of the river gorge during the
early morning hours of April 29, 1999. There was
nothing unduly suggestive about the array or the
procedure used in displaying it to McClurkin. See
People v. Sieteski, supra; see also, People v. Chipp,
supra.

On June 10, 1999 Investigator Anthony Campi-
one and Evelyn Baez met with Rosemary Legg and
showed her a six person photo array (People's Ex-
hibit No. 13). Legg filed a police report alleging
Defendant had raped her on June 6, 1999. Legg also
provided the poiiee with a Supporting Deposition
(People’s Exhibit No, 14). Legg identified the De-
fendant. There was nothing unduly suggestive
about the array or the procedure used in displaying
it to Legg. See People v. Sieteski, supra; see also
People v. Chipp, supra. The Legg photo array iden-
tification was confirmatory and Legg has an inde-
pendent basis for in-court identification of the De-
fendant. See People v. Rodriguez, supra.

On June 10, 1999 Investigator Terrance Sherid-
an met with Charles Coles at the Publie Safety
Building, Rochester and showed him a six person
photo array (People's Exhibit No. 16). Coles identi-
fied the Defendant. There was nothing unduly sug-
gestive about the array or the procedure used in dis-
playing it to Coles. See People v. Sieteski, supra;
see also, People v. Chipp, supra. Coles then agreed
to point out to Investigator Sheridan the house on
Orange Street, Roehester where prospective witness
Queenie Jones lived. When Coles pointed out the
Jones house he also identified the Defendant
Owens, who by sheer happenstance was in that
area. Coles' identification of the Defendant on Or-
ange Street was inadvertent and not part of a police
plan or arrangement to procure sueh identification.
Cf. People v. Dixon, 85 NY2d 218, 223-24 (1995).
Notably, Coles had previously identified Defendant
from a non-suggestive six person photo array.

On June 10, 1999 Investigator Gary Galetta
displayed a single photo of the Defendant to Betty

Owens at 104 Danforth Street, Rochester. She iden-
tified Defendant from the photograph (and also in-
dicated that she is not a relative of Defendant). See
Matter of James H., 34 NY2d 814, 816 (1974);
People v. Smoot, 166 Misc. 2d 862, 868 (Sup. Ct.
1995) (one photograph identification ordinarily
suggestive). Even if suggestive, Defendant was
known to witness Betty Owens, as her son's friend
and a former house guest, and thus the photo identi-
fication was confirmatory in nature. Ms. Owens has
an independent basis for in-eourt identification of
the defendant. See People v. Rodriguez, supra,

*4 On June 10, 1999 Investigator Anthony
Campione and the Roehester Police had probable
eause to arrest the Defendant based on a Rochester
City Court arrest warrant for violation of probation.
The poiiee also had probable eause to arrest the De-
fendant on that date on the charges of raping both
S.C., and R.L., as well as on the eharge of raping
and murdering Rosemary Constantino. New York
v. Giles, supra.; People v. Muldrow, supra.

About 10:15p.m. on the same date, the poiiee
began searching for Defendant Owens to bring him
in on the outstanding Roehester City Court warrant
and to question him. Defendant was found in a va-
cant lot near Portland and Whitney Streets in
Roehester. Defendant was sweating and wearing
blue semb pants that appeared to have blood on the
"back of them. When asked, Defendant acknow-
ledged he was John Owens, indicated he had no
identification and explained that the apparent blood
on the back of his pants was because he had sat on
something and injured himself.

Defendant was under arrest but asked to be
taken to his apartment to secure it before going
downtown. He was driven to the apartment where
Officer Evelyn Baez gave the house a walk around
visual inspection, knocked on a door and looked in
through a window to be sure no one was inside as
Defendant feared. This Court finds Defendant con-
sented to this eursory visual inspection. See People

v. Love, AD2d , 710 N.Y. Supp 2d

491, 4922 (4th Dept. 2000) (“while consent to

(D 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1313

Page 4

Not Reported in N.Y,S.2d, 2000 WL 33421405 (N.Y.Sup.), 2000 N.Y. Slip Op. 40020(U)

(Cite as: 2000 WL 33421405 (N.Y.Sup.))

'check' is not consent to search . . . the police did

not search”); People v. Cruz, AD2d ,

709 N.Y. Supp 2d 717, 7211 (4lh Dept. 2000) (a
tenant has authority to eonsent to the scareh of his
apartment). Defendant was informed that his resid-
ence was secure and was taken to the Public Safety
Building, Rochester for questioning.

During the ride to the Defendant’s residence
and to the Public Safety Building, Defendant made
spontaneous statements to the police which were
derogatory toward women. Those statements were
not included in the People's CPL §710.30(1) No-
tice. The People arc precluded from offering them
in their case in chief at trial. CPL §7 10.30(3).

At the Public Safety Building in Rochester De-
fendant was given coffee at about 10:40p.m. and
was properly cheeked for injuries by the police. For
approximately twelve minutes, the police ques-
tioned Defendant concerning his pedigree, and to
establish his ability to understand both his rights
and the questions posed by them. Answers given in
response to “routine booking questions” fall outside
the protection of Miranda if they are “reasonably
related to the police's administrative concerns.”
People v. Rodney, 85 NY2d 289, 292-93 (1995),
citing Pennsylvania v. Muniz, 496 US 582, 601-02
(1990). The People, however, may not rely upon
the pedigree exception if the inquiry, though fa-
cially appropriate, is likely to elicit incriminating
admissions. Id.

*5 Officer Anthony Campione asked Defendant
if he had been arrested in the past. Officer Campi-
one‘s question was “reasonably anticipated to evoke
a declaration” from the Defendant, and thus De-
fendant's response shall be suppressed. See People
v. Lynes, 49 NY2d 286, 293-95 (1980); cf. People
v. Deacon, 226 AD2d 1 120 (4th Dept. 1996). In ad-
dition, the admissibility of Defendant's prior arrest
record shall be governed by this Court’s decisions
on both the People’s Molineux and Sandoval No-
tices. See People v. Sandoval, 34NY2d 371 (1974);
People v. Molineux, 168 NY 264 (1901). Defend-
ant’s spontaneous statement that he met and/or

talked with a known convicted murderer in jail is
irrelevant, since its potential prejudicial effect out-
weighs any probative value, and may not be used at
Defendant’s trial. See generally, People v. Whit-
field, 144 AD2d 915, (4th Dept. 1988).

At about 10:52p.m. Investigator Campione read
the Defendant his Miranda warnings from a stand-
ard notification and waiver form (People's Exhibit
No. 4). See Miranda v. Arizona, supra. Defendant
made a knowing, intelligent and voluntary waiver
of his rights and agreed to talk to the police. People
v. Bradley, supra. No force, threat or duress was
used at any time to induce the Defendant to waive
his rights and talk to the police. The police did not
have an obligation to inform Defendant that he was
a suspect in a murder or a capital murder before
obtaining his waiver of his Miranda rights, as the
defense argues. People v. Schleyer, 236 AD2d 835,
836 (4th Dept. 1997); cf. People v. Tarsia, supra.

Defendant made statements to the poliee at
11:55p.m. concerning sexual activities with R.L.,
then he was given coffee and allowed to go to the
bathroom. At about midnight the Defendant made a
statement concerning sexual activities with S.C.
that took place on December 24, 1998 and contin-
ued to talk about S.C. and R.L.

At about 3:00a.m. June 11, 1999 Defendant
agreed to have his statement concerning sexual
activities with R.L. reduced to writing. Investigator
Campione completed typing the statement at
3:40a.m. Defendant was then given a bathroom
break. Investigator Dominick typed Defendant’s
statement concerning S.C. while Investigator Cam-
pione went to get Defendant a chicken sandwich, a
ham/cheese sandwieb, chips and a soda. Defendant
and Investigator Dominiek completed the statement
on S.C. at 4: 1 0a.m. Defendant signed both state-
ments (People’s Exhibit Nos. 5 & 6).

About the same time, at approximately
3:40a.m., Officer Baez returned to the vacant lot
where Defendant was arrested and found Defend-
ant's missing wallet. There is no legal basis for sup-

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1314

Page 5

Not Reported m N.Y.S.2d, 2000 WL 33421405 (N.Y.Sup.), 2000 NY. Slip Op. 40020(D)

(Cite as: 2000 WU 33421405 (N.Y.Sup.))

pression of the wallet and its contents. See People
v. Ynmagata, 208 AD2d 1120, 1121 (3rd Dept.
1994).

*6 At about 4:28a.m. the police began talking
with Defendant about the death of Rosemary Con-
stantino and continued this questioning until about
6:10a.m. Defendant was given coffee during that
time. From 6.10a.m. to 9:20a.m. the Defendant was
allowed to sleep or rest alone in an interview room.
At Defendant's request he was taken by the officiers
to the bathroom at 9:20a.m. The People's CPL
§710.30 Notice covers from 9:20a.m. to 9:50a.m.
The poliee again questioned him about Rosemary
Constantino's death. From 9:50a.m. to 10;30a.m.
Defendant was left alone.

At 10:30a.m. Investigator Sheridan interviewed
Defendant about the death of Sherry Tuthill. De-
fendant made statements about her death and when
Investigator Campione re-entered the room, the De-
fendant reiterated his statements for Investigator
Campione.

At about 1:02p.m. Defendant said he wanted to
talk to an attorney and the interview ended. Any
ftirther questioning of Defendant by the police only
pertained to pedigree information for a prisoner
data report. Defendant was photographed and taken
to booking. People v. Deacon, supra.

This Court concludes that between approxim-
ately 10:52p.m. on June 10, 1999 and 1:02p.m. of
the next day, June 1 1, 1999, Defendant had volun-
tarily and intelligently waived his Miranda rights,
and there was no need to rc-Mirandize the Defend-
ant. People v. Kemp, 266 AD2d 887 (4th Dept.
1999). Using a test of beyond a reasonable doubt,
this Court finds that at no time on June 10, 1999 or
June 11, 1999 was the Defendant deprived of his
rights under our federal or state Constitutions, stat-
utes or case law.

On June 11, 1999 Sergeant John Gropp met
with Ginger Thompson at 73 Walnut Street,
Rochester. Sergeant Gropp showed Thompson a six

person photo array (People's Exhibit No. 51).
Thompson identified the Defendant. There was
nothing unduly suggestive about the array or the
procedure used in displaying it to Thompson. See
People v. Sieteski, supra; People v. Chipp, supra.
The Thompson photo array identification was con-
firmatory and Thompson has an independent basis
for in-eourt identification of the Defendant. See
People v. Rodriguez, supra.

On June 14, 1999 Sergeant John Gropp met
with Dawn Parker at 1070 Fawnwood Circle, Web-
ster and showed her a six person photo array
(People’s Exhibit No. 18). Parker identified Defend-
ant. There was nothing unduly suggestive about the
array or the procedure used in displaying it to Park-
er. See People v. Sieteski, supra; see also, People v.
Chipp, supra. Parker has an independent basis for
in-court identification of the Defendant. See People
v. Rodriguez, supra.

On June 15, 1999 Sergeant Gropp tnet with
Thomas McCoy at 95 North Avenue, Webster and
showed him the six person photo array (People's
Exhibit No. 18), McCoy identified the Defendant.
There was nothing unduly suggestive about the ar-
ray or the procedure used in displaying it to Mc-
Coy. Sec People v. Sieteski, supra; see also, People
v. Chipp, supra, McCoy has an independent basis
for in-eourt identification of Defendant. See People
v. Rodriguez, supra.

*7 On June 15, 1999 Dcmaine Jackson, a pro-
spective witness arrived at the police homicide of-
fice for interview. Mr. Jackson noticed a photo-
graph of Defendant Owens on the wall among other
photos and indicated that he knew the Defendant.
The Jackson photo identification of Defendant was
inadvertent and not part of a police plan, arrange-
ment or effort to seeure such identification. Cf.
Matter of James H,, 34 NY2d 814, 816 (1974);
People v. Smoot, 166 Misc. 2d 862, 868 (Sup. Ct.,
Kings Cty, 1995). Since Defendant was known to
witness Jackson, the photographic identification
was eonfirmatOTy in nature and he has an independ-
ent basis for in-court identification of the Defcnd-

© 20] 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1315

Not Reported in N Y.S.2d, 2000 WL 3342 1405 (N. Y.Suj;.,
(Cite as: 2000 WL 33421405 (N.Y.Sup.))

ant. See People v. Rodriguez, supra.

On June 16, 1999 Investigator Thomas Janus
met with prospective witness, Christopher
Singleton at the Public Safety Building, Rochester
and showed him the six person photo array
(People's Exhibit No. 18). Singleton identified the
Defendant. There was nothing unduly suggestive
about the array or the procedure used in displaying
it to Singleton. See People v. Sieteski, supra; see
also, People v. Chipp, supra. Singleton has an inde-
pendent basis for in-court identification of the De-
fendant. See People v. Rodriguez, supra.

On July 1, 1999 Investigator Gary Galetla dis-
played duplicate photographs of the Defendant to
Paul Jones at his home at 27 Nyc Park, Rochester
(People's Exhibit No. 22). Jones marked on the
photograph where he had observed scratches on
Defendant's face in late April 1999. Defendant was
known to Jones since 1996. The photo identifica-
tion was confirmatory in nature and Jones has an
independent basis for identification of the Defend-
ant. See People v. Rodriguez, supra; cf. Matter of
James H.,supra. (one photograph identification or-
dinarily suggestive).

In summary, Defendant's contentions of unlaw-
ful actions by the police are not substantiated. The
People met their burdens at the hearing establishing
that the Defendant was lawfully detained, arrested,
identified, questioned and searched on both Decem-
ber 24, 1998 and June 10-11, 1999. The seizure of
his wallet, and cursory “check” of his apartment
were also lawful. See People v. Love, supra; People
v. Cruz, supra.

Defendant's suppression motion is therefore
denied in its entirety with two limited exceptions:

First, the People are precluded from offering in
their case in chief at trial any derogatory remarks
concerning women, which Defendant made during
the ride to the Public Safety Building on June 10,
1999. CPL §710.30(3). Second, after arriving at the
Public Safety Building, Defendant's response to the

Page 6

,), 2000 N.Y. Slip Op. 40020(U)

police's question about whether he had been arres-
ted in the past shall be suppressed, since the inquiry
was “reasonably anticipated to evoke a declaration”
from him. Sec People v. Lynes, supra.; cf. People v.
Deacon, supra. The admissibility of Defendant's
prior arrest record shall be governed by this Court's
rulings on both the People’s Molineux and Sandoval
Notices. See People v. Sandoval, supra.; People v.
Molineux, supra. Finally, Dcfendaut's spontaneous
statements, made within the first twelve minutes of
interrogation on June 10, 1999 regarding his in jail
discussions with a known convicted murderer, arc
irrelevant and tnay not be used at Defendant's trial.
See generally. People v. Whitfield, supra.

*8 This Decision shall constitute the Order of
the Court.

ZYNY

People v. Owens

Not Reported in N.Y.S.2d, 2000 WL 33421405
(N.Y.Sup.), 2000 N.Y. Slip Op. 40020(0)

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1316

We’stiaw,

1 86 Misc.2d 923, 72 1 N. Y.S.2d 487, 2001 N. Y. Slip Op. 21096

(Cite as: 186 Misc.2d 923, 721 N.Y.S.2d 487)

Page 1

Supreme Court, Monroe County, New York.

The PEOPLE of the State of New York, Plaintiff,
v.

John F. OWENS, Defendant.

Jan. 17, 2001.

Capital murder defendant moved to prohibit
prosecution from using peremptory strikes against
jurors who were not excludable for cause, but who
had beliefs in opposition to death penalty, and also
for order prohibiting court and prosecution from
alerting prospective jurors of qualification stand-
ards for their sendee. The Supreme Court, Monroe
County, David D. Egan, J., held that: (1)
"death -scrupled” jurors are not a distinct group
constitutionally protected from exercise of peremp-
tory strikes based on their membership in that
group, and (2) defendant was not entitled to pro-
tective order, as court was mindful of its voir dire
obligations.

So ordered.

West Hcadnotcs
(1| Jury 230 €==>33(5.15)

230 Jury

23 011 Right to Trial by Jury

230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(5) Challenges and Objections
230k33(5.15) k. Peremptory Chal-
lenges. Most Cited Cases

Under Batson, a party may not use a peremp-
tory challenge to strike a member of a constitution-
ally protected distinct group from a jury.

{2] Jury 230 €=>33(5.15)

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(5) Challenges and Objections
230k33{5.15) k. Peremptory Chal-
lenges. Most Cited Cases

Prospective jurors who have beliefs in opposi-
tion to capital punishment do not constitute a . dis-
tinct and cognizable group warranting constitution-
al protection, so that prosecution is not barred un-
der Batson from exercising peremptory challenges
against “death-scrupled” prospective jurors who are
not otherwise excusable for cause, McKinney's
CPL § 270.20.

|3J Jury 230 €=>33(5.15)

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right
230k33 Constitution and Selection of Jury
230k33(5) Challenges and Objections
230k33{5.15) k. Peremptory Chal-
lenges. Most Cited Cases

A cognizable and distinct group, whose mem-
bers are protected under Batson and its progeny
from being removed as prospective jurors through
peremptory challenges based on their membership
in group, is not one whose sole common character-
istic is a particular opinion about an issue.

(41 Jury 230 €=>131(13)

230 Jury

230V Competency of Jurors, Challenges, and
Objections

230kl24 Challenges for Cause
230k 13 1 Examination of Juror

230k 131(13) k. Mode of Examination.
Most Cited Cases

Capital murder defendant was not entitled to
order prohibiting court and prosecution from alert-
ing prospective jurors of qualification standards for
their service; court was mindful of its voir dire ob-
ligations, and existing law governing jury selection

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1317

Page 2

186 Misc,2d 923, 721 N.Y.S.2d 487, 2001 N.Y. Slip Op. 21096
(Cite as: 186 Misc.2d 923, 721 N.Y.S.2d 487)

would adequately address defendant’s concerns re-
garding prosecution.

**488*923 Howard R. Relin, District Attorney of
Monroe County (Michael C. Green and David A.
Foster of counsel), for plaintiff.

Kevin M. Doyle, Capital Defender (William T. Ea-
ston and Patricia Warth, of counsel), and Peter J.
Tullano, Rochester, for defendant.

*924 DAVID D. EGAN, J.

[1] This is a death penalty case. Defendant re-
quests this Court to prohibit the People from using
peremptory challenges to exclude any prospective
juror who has beliefs in opposition to capital pun-
ishment, but is not otherwise excusable for eause
pursuant to Criminal Procedure Law § 270.20. Un-
der Bat. son v. Kentucky , 476 U.S. 79, 106 S.Ct.
1712, 90 L.Ed2d 69 (1986) and its progeny, a party
may not use a peremptory challenge to strike a
member of a constitutionally protected “distinet
group” from a jury. Defendant thus asks this Court
to declare “death-scrupled” prospective jurors to be
members of such a distinct group. The People op-
pose all Defendant's requests.

1'2](3] Criminal Procedure Law (“CPL”) §
270.25(1) provides in part that *‘[a] peremptory
challenge is an objection to a prospective juror for
which no reason need be assigned.” See, Gray v.
Mississippi. 481 U.S. 648, 667-68, 107 S.Ct. 2045,
95 L.Ed.2d 622 (1987) (a proseeutor’s exereise of a
peremptory challenge is not generally subject to ju-
dicial review, absent a Batson rule violation). This
Court Finds no reason to undermine the People’s
statutorily guaranteed right to exercise peremptory
challenges in selecting a jury. This Court does not
find that “death-scrupled” jurors are a distinet and
cognizable group warranting constitutional protec-
tion. Accord People v, Santiago (Mon.Cty.Ct.
(Bristol, J.j February 17, 2000); People v. Bell
(Queens Cty.Ct. [Cooperman, J.] February 9,
1999); People v. Mateo (Mon.Cty.Co. (Connell, J.]
September 17, 1998). A cognizable and distinet

gronp is not one whose sole common characteristic
is a particular opinion about an issue. People v.
Bell , supra; see also, Willis v. Kemp, 838 F.2d
1510, 1514 (11th Cif.1988), cert, denied sub nom.
**489 mills v. Zant, 489 U.S. 1059, 109 S.Ct.
1328, 103 L.Ed.2d 596 (1989); Barber v. Ponte ,
772 F.2d 982, 986 (1st Cir.1985); People v. Guz-
man, 60 N.Y. 2d 403, 410-12, 469 N.Y.S.2d 916,
457 N.E.2d 1143 (1983), cert, denied 466 U.S. 951,
104 S.Ct. 2155, 80 L.Ed.2d54! (1984).

[4] In a separate motion, Defendant seeks an
Order prohibiting the Court and the People from
alerting prospective jurors of qualification stand-
ards for their service. In support, Defendant relies
upon both the notion of heightened due process,
which he avers attaches to all eapital eases, and
New Jersey court cases wherein the Court and/or
prosecutor erroneously notified prospective jurors
of sueh qualification standards. See e.g., State v.
Williams, 113 N.J. 393, 550 A.2d 1172, 1180
(1988). This Court is mindful of its obligations dur-
ing voir dire. The Court also is convinced that the
existing law governing jury selection *925 ad-
equately addresses Defendant's concerns regarding
the People.

Defendant's motions entitled DEF-40 and DEF-
45 are in all respects denied.

N.Y.Sup.,2001.

People v. Owens

186 Mise.2d 923, 721 N.Y.S.2d 487, 2001 N.Y.
Slip Op. 21096

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1318

Westlaw.

Page 1

187 Misc.2d 317, 722 N.Y,S.2d 721, 2001 N.Y. Slip Op. 21 123
(Cite as: 187 Misc.2d 317, 722 N.Y.S.2d 721)

Supreme Court, Monroe County, New York.

The PEOPLE of the State of New York, plaintiff,
v.

John F. OWENS, Defendant.

Feb. 26, 2001.

In capital murder ease, defendant filed motion
alleging that he was denied effective assistance of
eounsel when he was not timely notified that he
would be charged with first degree murder. The
Supreme Court, Monroe County, David D. Egan,
J., held that defendant was not prejudiced by late
notiec.

Motion denied.

West Hcadnotes

Criminal Law 110 €=>1852

1 10 Criminal Law
liOXXXI Counsel

1 10XXXI(B) Right of Defendant to Counsel
1 10XXXI(B)1 1 Deprivation or Allowance
of Counsel

1 1 0k 1 852 k. Particular Cases in Gener-
al. Most Cited Cases

(Formerly 110k64 1.12(1))

Defendant was not denied effective assistance
of eounsel, even though the People failed to timely
notify defendant that he might be charged with cap-
ital murder, which would have entitled him to ap-
pointment of counsel and investigative and other
services; defendant was ultimately assigned capital
counsel, and assignment of capital counsel occurred
before grand jury presentation and a full year be-
fore commencement of individual voir dire.
U.S.C.A. Const.Amend. 6; McKinney's Judiciary
Law § 35-b, subd. 1.

**721*317 Kevin M. Doyle, Capital Defender (
William T. Easton, Patricia Warth and Peter J. Pul-

lano of counsel), for Defendant.

Howard R. Relin, District Attorney of Monroe
County (Michael C. Green and David A. Foster of
eounsel), for plaintiff.

DAVID D. EGAN, J.

This is a death penalty ease. Three months
elapsed between Defendant's initial arraignment on
non-capital murder charges, inter alia Second De-
gree (depraved indifference) Murder, in *318 June
1999 **722 and the People's formal notification to
the Defendant that he would be ehar^cd with First
Degree Murder in September 1999 t . Almost a
full year later and only one week before a jury pan-
el of seven hundred (700) prospective jurors was
summons to appear in early September 2000, De-
fendant brought this motion arguing he was denied
effective assistance of counsel since he did not have
the benefit of appointed eounsel under Judiciary
Law § 35-b, which governs the appointment of
counsel in a eapital case. Defendant requests that
the death notice be stricken, or that a evidentiary
hearing be held. In supplemental papers, Defendant
alternatively asks this Court to prohibit the People
from using at trial any information resulting from
the investigation whieh it undertook to determine if
Defendant should be charged with First Degree
Murder, or for a three month adjournment.

FNL At arraignment the Rochester City
Court inquired whether there was a possib-
ility of a capital prosecution, but the
People indicated that it had no information
that such a prosecution was contemplated.
Pursuant to Judieiary Law § 35-b (6), the
People provided notiee of the Second De-
gree Murder charge to the Capital De-
fender's Office.

The counsel appointed to represent Defendant
under County Law § 18-b at his initial arraignment
was both qualified to act and ultimately appointed

©201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1319

Page 2

1 87 Misc.2d 317, 722 N.Y,S.2d 721, 2001 N.Y. Slip Op. 21123
(Cite 3s: 187 Misc.2d 317. 722 N.Y.S.2cJ 721)

as Defendant's lead counsel pursuant to the Judi-
ciary Law § 35-b. Defendant however argues that
the laek of a Judieiary Law § 35-b designation
abridged his rights, since such designation gives a
capital defendant both the right to the appointment
of an associate eounsel, as well as aceess to
“adequate investigative, expert or other reasonably
necessary services.” Judiciary Law § 35-b (1), (2)
*(*).

Judiciary Law § 35-b (1) provides in part:

in any criminal action in which a defendant is
charged with murder in the second degree as
defined in section 125.25 of the penal law and the
district attorney confirms upon inquiry by the
court that the district attorney is undertaking an
investigation to determine whether the defendant
can or shout d be charged with murder in the first
degree as defined in section 125.27 of the penal
law and the court determines that there is a reas-
onable likelihood the defendant will be so
charged ... the defendant shall be entitled to the
appointment of counsel and investigative, expert
and such other reasonably necessary services in
accordance with *319 the provisions of this sec-
tion.

id. (emphasis added). And Judiciary Law §
35-b (1) provides in part: “[wjilh respect to counsel
at trial and at a separate sentencing proceeding, the
court shall appoint two attorneys, one to be desig-
nated ‘lead’ counsel and the other to be designated
‘associate’ eounsel.” Id.

The People concede they did not formally noti-
fy Defendant that he would be charged with First
Degree Murder until September 9, 1999, but assert
that by late June 1999 they had informed both De-
fendant's counsel and the Capital Defender’s Office
that there was □ possibility of First Degree Murder
charges being filed.

At least one court has stated that Judiciary Law
§ 35-b mandates the “early involvement” of eapital
representation for a defendant under investigation

for First Degree Murder. People v. Brown, 16 6
Misc.2d 378, 380, 633 N.Y.S.2d 936

(Mon.Cty.Ct.1995); see also. People v. Andrews,
170 Misc.2d 67, 69, 650 N.Y.S.2d 74 (Tompkins
Cty. Ct.1996). For that reason, the People's equi-
vocations upon inquiry failed to notify the Court of
the ongoing First Degree Murder investigation in
violation of Judiciary Law § 35-b. But even assum-
ing that Defendant was denied improperly Judiciary
Law § 35-b (8) representation for a three month
period, Defendant has failed to demonstrate any
prejudice resulting from such lack of representa-
tion. See People v. Muhatmned, 183 Misc.2d 591,
598-99, 705 N.Y.S.2d 509 (Sup.Ct., Kings
Cty.2000). Three months after his initial arraign-
ment and eleven days before the **723 presentation
of inter alia First Degree Murder charges to the
Grand Jury, the People notified the Defendant of
the potential First Degree Murder case. On or
about September 15, 1999 this Court assigned cap-
ital counsel.

Defendant argues that the People had an unfair
advantage in reviewing “fresh” evidence and re-
searching the background of Defendant and his
family. This Court finds Defendant has had ad-
equate time and resources to prepare for both trial
and potential mitigation. The assignment of capital
counsel occurred before the Grand Jury presenta-
tion and a full year before the commencement of in-
dividual voir dire. Notably one form of relief De-
fendant seeks is an additional three month adjourn-
ment for pre-trial preparation. Recently a ten week
adjournment was granted to the Defendant for the
substitution of eounsel. During this same time this
Court required the parties to appear only twice,
simply to place on the record any additional con-
sent exeusals which the defense and the People
*320 may have reached on the basis of the written
Juror Questionnaires See People v. Owens,
2001 N.Y. Misc. LEXIS 6 (January 10, 2000).,

FN2. Although defense counsel argued a
few motions on those dates, the return
dates were selected upon their request.

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1320

Page 3

187 Misc.2d 317, 722 N.Y.S,2d 721, 2001 N.Y. Slip Op. 7M23
(Cite as: 187 Misc.2d 317, 722 N.Y.S.2d 721)

For the foregoing reasons, Defendant's motion
entitled DEF-49 is denied in its entirety.

N.Y.Sup.,2001.

People v. Owens

187 Misc.2d 317, 722 N.Y.S.2d 721, 2001 N.Y.
Slip Op. 21123

END OF DOCUMENT

O 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1321

Page 1

21124

Westiaw.

187 Misc.2d 380, 723 N.Y.S.2d 621, 2001 N Y. Slip Op.
(Cite as: 187 Misc.2d 380, 723 N.Y.S.M 621)

H

Supreme Court, Monroe County, New York.
The PEOPLE of the State of New York, Plaintiff,
v.

John F. OWENS, Defendant.

Mareh 6, 2001.

Capital murder defendant filed motion chal-
lenging the constitutionality of statutory guilty plea
provisions in not affording a defendant an uncondi-
tional right to plead guilty when charged with first
degree murder and when a notice of intent to seek
the death penalty is pending. The Supreme Court,
Monroe County, David D. Egan, J., held that the
challenge was not ripe for adjudication.

Motion denied.

West Headnotes

[1} Constitutional Law 92 ^=>978
92 Constitutional Law

92 VI Enforcement of Constitutional Provisions
92V1(C) Determination of Constitutional

Questions

92VI(C)2 Necessity of Determination
92k978 k, Ripeness; Prematurity. Most

Cited Cases

(Formerly 92k46(l))

Challenge to constitutionality of statutory death
penalty scheme, insofar as it docs not afford a de-
fendant an unconditional right to plead guilty when
charged with first degree murder and when a no-
tice of intent to seek the death penalty is pending,
was not ripe for adjudication where defendant had
yet to make a request to enter a guilty pica. MeKin-
ney’s CPL §§ 220.10, subds. 2, 5(c), 220,30,subd.
3(b)(vii), 220.60, subd. 2, 250.40, 400.27.

|2j Sentencing and Punishment 350H ^=^1626

3 5 OH Sentencing and Punishment

350HVII1 The Death Penalty
350HV1U(A) In General

350Hkl622 Validity of Statute or Regu-
latory Provision

350Hk!626 k. Proeedure. Most Cited

Cases

Statutory death penalty scheme was not shown
to be unconstitutional in not affording a defendant
an unconditional right to plead guilty when eharged
with first degree murder when a notice of intent to
seek the death penalty is pending. McKinney's CPL
§§ 220.10, subds. 2, 5(e), 220.30, subd. 3(b)(vii),
220.60, subd. 2, 250.40, 400.27.

[3] Constitutional Law 92 <&=>1(H)8

92 Constitutional Law

92V1 Enforcement of Constitutional Provisions
92VI(C) Determination of Constitutional

Questions

92VI(C)3 Presumptions and Construction
as to Constitutionality

92k 1006 Particular Issues and Applica-
tions

92kl008 k, Penal Statutes. Most

Cited Cases

(Formerly 92k48(4.1))

Death penalty statutes, as construed by the
Court of Appeals, carry a strong presumption of
constitutionality, as do all statutes McKinney's
CPL §§ 220.10, subds. 2, 5(e), 220.30, subd.
3(b)(vii), 220.60, subd. 2, 250.40, 400.27.

**621*380 Howard R. Refill, District Attorney of
Monroe County (Michael C. Green and David A.
Foster of counsel), for plaintiff.

Kevin M. Doyle, Capital Defender (William T. Ea-
ston, Patrieia Warth and Peter J. Pullano of coun-
sel), for defendant.

DAVID D. EGAN, J.

This is a death penalty ease. Defendant John
Owens is charged with two eounts of Murder in

©2011 Thomson Reuters. No Claim to Orig, US Gov. Works.

1322

Page 2

187 Misc.2d 380, 723 N.Y.S.2d 621, 2001 N.Y. Slip Op. ?! 124
(Cite ns: 187 Misc.2d 380, 723 N.Y.S.2d 621)

the First Degree, three counts of Murder in the
Second Degree, and three counts of Rape in the
First Degree. This Court by its decision dated Au-
gust 17, 2000 severed for trial one count alleging
Defendant raped victim “S.C " People v. Owens,
DEF-32, unpublished (Sup.Ct. Mon. Cty. [Egan, J.]
2000). The District Attorney *381 filed a Notice. of
Intent To Seek The Death Penalty pursuant to
Criminal Procedure Law (CPL) § 250.40 on Janu-
ary 24, 2000.

In this case Defendant has not sought to enter a
guilty plea, either before or after **622 the District
Attorney filed the Notiee of Intent to Seek the
Death Penalty. Nonetheless, Defendant challenges
the constitutionality of the guilty pica provisions of
CPL Article 220, and CPL §§ 250.40 and 400.27 as
interpreted by the Court of Appeals in both Fran-
cois v. Dolan, 95 N.Y.2d 33, 709 N.Y.S.2d 898,
731 N.E.2d 614 (2000) and Hynes v. Tomei, 92
N.Y. 2d 613, 684 N.Y.S.2d 177, 706 N.E.2d 1201
(1998). See New York Const., Art. I. Sec. 1, 2, 5 &
1 1; U.S. Const., Art. I, Sec. 10 & Amds. 5th, 6th,
8th and 14th. Defendant asks this Court to strike the
Notice of Intent to Seek the Death Penalty, allow
him to enter a guilty plea, if he so elects, or offer
argument at sentencing that the law prohibited him
from entering a guilty plea in this case.

In Hynes v. Tomei, 92 N.Y.2d 613, 684
N.Y.S,2d 177, 706 N,E,2d 1201 (1998) the Court of
Appeals found the 1995 death penalty statute had a
so-called Jackson infirmity, stating:

[cjapital defendants under the New York statute
who are awaiting trial and are offered a plea are
still faced with the choice Jackson declared un-
constitutional: exereise Fifth and Sixth Amend-
ment rights and risk death, or abandon those
rights and avoid the possibility of death.

Id. at 626, 684 N.Y.S.2d 177, 706 N.E.2d 1201,
citing United States v. Jackson, 390 U.S. 570, 582,
88 S.Ct. 1209, 20 L.Ed,2d 138 (1968). Instead of
invalidating the entire death penalty statute, the
Court excised the offending guilty plea provisions

set forth in CPL §§ 220.1Q(5)(e) and

220.3 0(3 )(b)(vii), holdrnj* that the revised statute
prohibits a guilty plea r to First Degree Murder
while a Notice of Intent to Seek the Death Penalty
is pending. Id. at 629, 88 S.Ct. 1209.

FNJ. Recently the Appellate Division for
the Third Department in People v. Ed-
wards. 274 A.D.2d 754, 712 N.Y.S.2d 71
(3rd Dept. 2000) found that the mere offer
of a pica bargain to First Degree Murder
while a death notice is pending presents a
capital defendant with the same unconsti-
tutional Jackson choice. In Edwards the
trial court permitted the prosceutor to with-
hold her eonsent to the plea and her with-
drawal of the notice of intent to seek the
death penalty until after defendant
proffered his plea to the court and made a
complete allocution, Id. at 757, 712
N.Y.S.2d 71. The Third Department re-
versed and vaeated the defendant's guilty
plea. Id at 760, 712 N.Y.S.2d 71. This
Court is aware that the Court of Appeals
granted leave to appeal the Edwards de-
cision in December 2000. The Court of
Appeals will not hear arguments in that
case until May 2001.

In Francois v. Dolan. 95 N.Y.2d 33, 709
N.Y.S.2d 898, 731 N.E,2d 614 (2000) the Court of
Appeals farther held that the District Attorney's
statutory authority to file a Notice of Intent to Seek
the Death Penalty within one hundred and twenty
(120) days of arraignment, overrides a defendant’s
*382 unconditional right to plead guilty to an in-
dictment under the general pica provisions of the
Criminal Procedure Law, more speeifieaUy, CPL §§
220.10(2) & 220.60(2). Id. at 38-39, 709 N.Y.S.2d
898, 731 N,E.2d 614. It is against this baekdrop
that Defendant argues, inter alia, that the current
statute both deprives him of his fundamental right
to plead guilty unconditionally, and denies him of
the same rights those capital defendants enjoyed
who were charged with First Degree Murder prior

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1323

Page 3

187 Misc.2d 380, 723 N.Y.S.2d 621, 2001 N.Y. Slip Op. 21 124
(Cite as; 187 Misc.2d 380, 723 N.Y.S.2d 621)

to the Court of Appeal's rulings in Hynes v. Tomei,
supra, and Francois v. Dolan , supra.

[1][2] The People urge that Defendant lacks
standing to challenge the constitutionality of CPL
Artiele 220 and CPL §§ 250.40 and 400.27, and the
issue is not ripe for this Court’s determination. De-
fendant's indictment for First Degree Murder and
the District Attorney's filing of the Notice of Intent
to Seek the Death Penalty “brought [Defendant]
squarely **623 within the statutory scheme which
he argues is facially defective.” People v, McIntosh,
173 Mise.2d 727, 728, 662 N.Y.S.2d 214 (Dutchess
Cty, Ct.1997). But this Court finds that since this
Defendant has yet to make a request to enter a
guilty plea the issue is not ripe for adjudication. Cf.
People v. Owens, 184 Misc.2d 600, 601, 710
N.Y.S.2d 790 (Sup.Ct. Mon. Cty. [Egan, J.] 2000).
Even if Defendant now sought to enter a guilty pica
this Court finds that Defendant has not proved bey-
ond a reasonable doubt that the current death pen-
alty scheme is unconstitutional.

[3] While a defendant does not have an uncon-
ditional right to plead guilty when charged with
First Degree Murder and a Notice of Intent to Seek
the Death Penalty is pending, the ability to enter a
guilty plea is not completely foreclosed to him. As
the CouTt of Appeals in Hynes v. Tomei, supra, at
629, 684 N.Y.S.2d 177, 706 N.E.2d 1201 aptly
noted:

While reducing the flexibility of plea bargaining
in capital cases, excision of the unconstitutional
provisions docs not prevent pleas of guilty to first
degree murder when no notice of intent to seek
the death penalty is pending, since defendants in
that situation face the same maximum sentence
regardless of how they are convicted. Nor does
the resulting statute prevent a defendant from
pleading guilty to another offense not punishable
by death, even when a notice of intent to seek the
death penalty is pending, since nothing in Jack-
son prohibits imposing different penalties for dif-
ferent crimes.

*383 Indeed here. Defendant has never ex-
plored the possibility of entering a guilty pica to the
full indietment, even though this Court is aware
that the District Attorney might have entertained
the same before the Notice of Intent to Seek the
Death Penalty was filed. This Court is bound by the
decisions of the Court of Appeals in Hynes v.
Tomei, supra, and Francois v. Dolan, supra, and
acknowledges that the resulting New York “death
penalty statute carries a strong presumption of con-
stitutionality as do all statutes.” Hy ne s v. Tomei, 92
N.Y. 2d at 626, 684N.Y.S.2d 177, 706 N.E.2d 1201

For the foregoing reasons. Defendant's motion
challenging the constitutionality of the guilty plea
provisions of New York's death penalty statute is
denied in its entirety.

N.Y.Sup.,2001.

People v. Owens

187 Misc.2d 380, 723 N.Y.S.2d 621, 2001 N.Y.
Slip Op. 21124

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1324

We'sti'aw.

Page 1

Not Reported in N.Y.S.2d, 2001 WL 1034244 (N.Y.Siip.), 2001 N.Y. Slip Op. 401 16(U)

(Cite as: 2001 WL 1034244 (N.Y.Sup.))

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORf ED IN N.Y.S.2d.

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK
v.

JOHN F. OWENS, Defendant.

Ind. #547/99 Consolidated with Ind. #414/99
DATED; March 16, 2001, Rochester, New York

HOWARD R. RELIN, ESQ. Monroe County Dis-
trict Attorney MICHAEL C. GREEN, ESQ. First
Assistant District Attorney DAVID A. FOSTER,
ESQ. Assistant District Attorney FOR THE
PEOPLE

KEVIN M. DOYLE, ESQ. Capital Defender WIL-
LIAM T. EASTON, ESQ. First Deputy Capital De-
fender PATRICIA WARTH, ESQ. Deputy Capital
Defender PETER J. PULLANO, ESQ. FOR THE
DEFENDANT

EGAN, J.:

*1 Defendant asks this Court to declare the
1995 New York death penalty statutes. Penal Law
§127.25 (2001) and Criminal Procedure Law
(“CPL”) §400,27 (2001), unconstitutional. Defend-
ant argues that it (1) constitutes cruel and unusual
punishment in violation of the U.S. Constitution,
8th & 14th Amd; New York Constitution, Art. I, §5
; (2) constitutes disproportionate punishment in vi-
olation of the U.S. Constitution, 8th & 1 4th Amd.;
New York Constitution, Art. I, §5; (3) invites invi-
dious discrimination against Afriean-Amcrican and
other cognizable groups causing the arbitrary im-
position of the death penalty in violation of the U.S.
Constitution, 5th, 6th, 8th & 14th Aind.; New York

Constitution, Art. I, §11; and (4) deprives citizens
of their fundamental right to life in violation of the
U.S. Constitution, 5th, 6th, 8th & 14th Amd.; New
Yolk Constitution, Art. I, §6. Defendant thus asks
this Court to enter an Order dismissing (he indict-
ment and also requests an evidentiary hearing. The
People oppose Defendant's motion.

Defendant, an African-American, argues that
the 1995 death penalty encourages invidious dis-
crimination against Afriean-Americans and other
cognizable groups, resulting in its arbitrary imposi-
tion. Defendant suggests that in New York the
following factors unfairly influence the imposition
of the death penalty; geography, the race of defend-
ant and victim, age of the victim and politics of
both the Governor and local District Attorneys. In
support Defendant relies upon nationwide studies
and statistical data on executions and murder vic-
tims in New York. Defendant also cites statistical
data showing the frequency by which death notices
are filed in upstate New York, in particular Monroe
County, compared to other areas of the state.

FN1. Defendant argues that the death pen-
alty’s (1) anticipatory deadlock instruction;
(2) lack of guidelines in the two-step sen-
tencing process; (3) prohibition against a
capital defendant waiving a jury in the
guilt phase of his trial; and (4) conditional
guilty pica provisions, each serve to ex-
acerbate the arbitrary imposition of the
death penalty. This Court's earlier de-
cisions found these provisions passed con-
stitutional muster. See People v. Oweus,
184 Misc. 2d 600 (Sup. Ct. Mon. Cty.
2000); People v. Owens, DEF-21, unpub-
lished (Sup. Ct. Mon. Cty. [Egan, J.] May
30, 2000); People v. Owens, DEF-28, in-
fra.; People v. Owens, DBF-27, unpub-
lished (Sup. Ct. Mon. Cty.[Egan, J.J March
6 , 2001 ).

*2 Defendant has not made an adequate show-

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1325

Page 2

Not Reported in N.Y.S.2d, 2001 WL 1034244 (N.Y.Sup.), 2001 N.Y. Slip Op. 401 !6(U)

(Cite as; 2001 WL 1034244 (N.Y.Sup.))

ing for an equal protection violation under onr fed-
eral or state constitution. See U.S. Constitution, 5th
, 6th, 8 th & 14th Amd.; New York Constitution,
Art. 1, §11. Defendant emphasizes that “the New
York Legislature passed the new death penalty stat-
ute with full knowledge that it would not^and ean-
not be applied in a race-neutral manner .” As
Defendant acknowledges he must show there exists
a scheme of intentional discrimination, and "the de-
cisionmakers in his case acted with a discriminatory
purpose.” Sec McClesky v. Kemp, 481 US 279,
292, rch'g denied 482 US 920 (1987). In MeClesky,
the Supreme Court refused to accept staiisties alone
as proof of discrimination in the use of the death
penalty. 481 US at 294. There is no evidence that
New York's death penalty statute has been applied
to discriminate against any constitutionally protec-
ted class. The statute docs not single out a constitu-
tionally protected class, only a specific subelass of
murderers. People v. Mateo, 175 Mise. 2d 192, un-
published portion, p. 14 (Mon. Cty. Ct. 1997). De-
fendant moreover has failed to show that the al-
leged discriminatory scheme has had “a discrimin-
atory effect on him.” Id. at 292.

FN2. Defendant offers no support for this
allegation. As diseussed at length herein,
the death penalty statute was structured to
rcstriet a District Attorney’s discretion and
carefully guide a jury’s determinations at
both the guilt and sentencing phases of tri-
al.

Defendant also avers that New York’s death
penalty statute constitutes eniel and unusual pun-
ishment violation of U.S. Constitution, 8th & 14th
Amd. The United States Supreme Court in Gregg v.
Georgia, 428 US 153 (1976) held that the death
penalty does not per se violate the cruel and un-
usual punishment elause. Indeed New York's death
penalty statute was tailored to eonform with the
procedural safeguards and constitutional require-
ments delineated in Gregg v. Georgia. Id.; see
People v. Owens, DEF-28, unpublished, pp.2-3
(Sup. Ct. Mon. Cty. [Egan, J.J August 30, 2000).

Defendant has not advanced an argument that com-
pels a different result under our State Constitution.
New York Constitution, Art. 1, §5 is a verbatim ad-
aption of the U.S. Constitution’s Eighth Amend-
ment and arose out of the same historical frame-
work. See People v. Hale, 173 Misc, 2d 140, 167 n.
18 (Sup. Ct. N.Y. Cty.), rev'd on other grounds sub
nom Hynes v. Toinei, 237 AD2d 52 (2nd Dept.
1997), rev'd, 92 NY2d 613 (1998), cert denied 527
US 1015 (1999); People v. Mateo, supra, at 5;
People v. Parker, unpublished, p. 53-54 (Erie Cty.
Ct. [D'Amico, J.] July 2, 1998).

*3 Defendant further argues that the death pen-
alty is in eonflicl with “contemporary standards of
decency.” This Court finds no merit to Defendant's
contention since New York's death penalty statute
was reenacted by the legislature just over five years
ago in 1995 after receiving “extensive public de-
bate.” See People v. Chinn, Nov. 19, 1996 NYU, at
31, col. 3 (Onondaga, Cty. Ct. 1996). The vast ma-
jority of other states have enacted a death penalty
since the Supreme Court's landmark deeision in
Gregg v. Georgia, supra. See People v. Mateo,
supra, at 6, citing People v. Thompson, 83 NY2d
477, 480 (1994). “This statute is not an infringe-
ment on the rights of its eitizens but [rather] seen as
a protection for its citizens,” People v. Mateo,
supra, at 8.

This Court does not agree that the District At-
torney's “unbridled discretion” to seek and impose
the death penalty renders it unconstitutional. The
legislature designed the death penalty statute to in-
clude procedural safeguards restricting its imposi-
tion. The District Attorney may seek the death pen-
alty only if the crime charged alleges one of twelve
distinct aggravating factors that elevates it above
other murders. See Penal Law §125.27(1). The
District Attorney only has a one hundred and
twenty (120) day window to deeide whether to seek
the death penalty. CPL §250.40 (2001) (Notice of
Intent To Seek Death Penalty). At trial, the District
Attorney carries the burden of proving beyond a
reasonable doubt all of the elements of the crime,

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1326

Page 3

Not. Reported in N.Y.E,2d, 2001 WL 1034244 (N.Y.Sup.), 2001 N.Y Slip Op. 401 16(U)

(Cite as: 2001 WL 1034244 (N.Y.Sup.))

including the statutory aggravating factors, before a
jury even entertains the death sentence. See CPL
§400.27(3).

The jury’s determination too is guided purpose-
fully to prevent the arbitrary imposition of the death
penalty. As this Court noted in an earlier deeision:

CPL §400.27 [ } employs a balancing test, jus-
tifying the imposition of a death sentence in only
those cases where those aggravating factors proved
at trial substantially outweigh all mitigating evid-
ence. See CPL §§400.27(3), (6), and (11). CPL
§400.27(3) provides for an individualized senten-
cing determination by allowing the Defendant to
challenge any aggravating factor by presenting mit-
igating evidence "concerning the crime, the defend-
ant’s state of mind or condition at the time of the
crime. . even in hearsay form. See CPL §400.27
(9) (f). An individual juror may consider any mitig-
ator, if it was proved by Defendant to the satisfac-
tion of such juror by a preponderance of the evid-
ence. Unanimity is not required. CPL §400,27

(1 OOO-

*4 The Supreme Court has held that such a
weighing process alone is sufficient for the imposi-
tion of a death sentence. See Blystonc v
Pennsylvania, 494 US 299 (1990); Boyde v Califor-
nia, 494 US 370 (1990). Instead CPL §400.27 (11)
(a) provides an additional safeguard for a defendant
facing the death penalty. The weighing process is a
prerequisite to the sentencing jury's “unanimous de-
tcrmmfation] that the penalty of death should be
imposed,” Id. CPL §400.27 (11) (a) thus empowers
the jury to exercise mercy and decline to impose the
death penalty even if it has found, after weighing
both aggravating and mitigating factors, that death
is otherwise warranted.

Despite Defendant's claims otherwise, no fur-
ther guidelines are constitutionally required at this
stage of the jury's deliberations. See Tuilaepa v.
California, 512 US 967, 979-80 (1994) (“[a] capital
sentencer need not be instructed how to weigh any
particular fact in the eapital senteneing decision.”)

People v. Owens, DEF-28, supra. Finally, the
Court of Appeals automatically reviews any death
sentence.

Defendant next asserts that New York's death
penalty statute constitutes a disproportionate pun-
ishment in violation of U.S. Constitution, 8th &
14th Amd.; New York Constitution, Art. 1, §5. Pen-
al Law §125.27(1) “’genuinely narrowfs] the elass
of persons eligible for the death penalty”’ by delin-
eating twelve distinct aggravating faetors that raise
the gravity of their crimes above other murders.
See Lowenfield v. Phelps, 484 US 231, 244 (1988).
Defendant has not proved that a sentence of death is
disproportionate to the enumerated crimes in Penal
Law §125.27. Accord People v. Mateo, supra at
6-8; People v. Parker, supra at 56; see People v.
Broadie, 37 NY 2d 100, 1 17 (1975) ("Rarely has a
penal sanction been struck down by the courts of
this State as unconstitutional under the cruel and
unusual punishment clause, and never on the
ground of disproportionality.’’)

Defendant finally contends that the death pen-
alty deprives eitizens of their fundamental right to
life. The Courts of New York have uniformly rejec-
ted similar claims since there is no federal or state
authority guaranteeing a convicted murderer of the
fundamental right to life. See e.g., People v. Parker,
supra, at 59; People v. Mateo, supra, at 2-10;
People v. Chinn, supra. This Court finds no reason
to differ from those holdings.

*5 For the foregoing reasons. Defendant’s mo-
tion entitled DEF-25 challenging the constitutional-
ity of New York’s death penalty statute is denied in
its entirety.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v. Owens

Not Reported in N,Y.S.2d, 2001 WL 1034244
(N.Y.Sup.), 2001 N.Y. Slip Op. 401 16(U)

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1327

Westlaw.

188 Misc.Jd 200, 111 N.Y.S.2d 266, 2001 N.Y, Slip Op.
(Cite as: 188 Misc.2d 200, 727N.Y.S.2d 266)

N

Supreme Court, Monroe County, New York.
The PEOPLE of the State of New York, Plaintiff,
v.

John F. OWENS, Defendant.

Mareh 23, 2001.

Defendant, charged with eapital murder,
sought relief following issuance of allegedly im-
proper subpoenas duees tecum. The Supreme Court,
Monroe County, David D. Egan, J., held that: (1)
subpoenas did not violate federal Family Rights and
Privacy Act; (2) information contained in sub-
poenaed prison records could be provided to pro-
secution, following redaction to cxcludcphysician-pa-
tient privileged information and any sealed youthful
offender records; (3) defendant lacked standing to
challenge subpoenas of relatives' medical reeords;
(4) subpoenas could be issued without notifying de-
fendant; and (5) prosecution would not be sanc-
tioned for inadvertently making subpoenas return-
able to its offices, rather than court.

Relief denied.

West Headnotes

{1] Records 326

326 Records

326II Public Access
32611(A) In General

326k31 k. Regulations Limiting Access;
Offenses. Most Cited Cases

Rights of capital murder defendant, under fed-
eral Family Rights and Privacy Act, were not viol-
ated when educational institutions released records
to prosecution, pursuant to subpoenas. General
Education Provisions Act, § 444(bXO» as amended,
20 U.S.C.A. § 1232g(b)(l).

[2] Records 326 <0=^>31

326 Records

32611 Public Access
32611(A) In General

326k3t k. Regulations Limiting Access;
Offenses. Most Cited Cases

Failure of educational institutions to notify
capital murder defendant that they were supplying
records to prosecution pursuant to subpoena, as re-
quired by federal Family Rights and Privacy Act,
did not affect validity of subpoena as exception to
Act's disclosure prohibitions. General Education
Provisions Act, § 444(b)(2), as. amended, 20
U.S.C.A. § 1232g(b)(2).

(3j Privileged Communications and Confidenti-
ality 31111 <£^>256

31 1H Privileged Communications and Confidenti-
ality

31 1HIV Physician-Patient Privilege

31 lHk256 k. Medical or Hospital Records or
Information. Most Cited Cases
(Formerly l I0k627.8(4))

Privileged Communications and Confidentiality
311HC=^376

31 111 Privileged Communications and Confidenti-
ality

31 111 VI Public Officers and Records

31 !Hk376 k. Juvenile Records. Most Cited

Cases

(Formerly 1 10k627.8(4))

Information regarding defendant in eapital
murder case, obtained from subpoenas served on
correctional institutions, could be given to prosecu-
tion, following in camera review by court to elimin-
ate information subject to physician-patient priv-
ilege and sealed records arising out of any youthful
offender adjudications. McKinney's CPLIf 4504,
4507.

|4] Witnesses 410 <0=>16

410 Witnesses

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1328

Page 2

21204

188 Misc.2d 200, 727 N.Y.S.2d 266, 2001 N.Y. Slip Op.
(Cite as; 188 Misc.'2iF200, 727 N.Y.S.2d 266)

4101 In Genera!

4 1 Ok 1 6 k. Subpoena Duces Tecum. Most
Cited Cases

Defendant in capital murder case lacked
standing to challenge issuance of subpoenas for
medical records of defendant's relatives, made re-
turnable to court and held by court in confidence
for use only if information became material during
trial.

|5] Witnesses 410 €=>16

410 Witnesses
4101 In General

410kl6 k. Subpoena Duces Tecum. Most
Cited Cases

Prosecution could issue subpoenas duees tecum
to third parties, in capital murder case, without no-
tifying defendant. MeKinney's CPL § 610.20, subd.
2; McKinney's CPLR 2307.

[6| Witnesses 410 C=>16

410 Witnesses
4101 In General

4 10k 1 6 k. Subpoena Duces Teeum. Most
Cited Cases

Any requirement that prosecution give notice,
to defendant eharged with capital murder, of sub-
poenas being served on third parties, due to lack of
reciprocal diseovery, was satisfied when court re-
quired that prosecution reproduce and give to de-
fendant copies of any material obtained through
subpoenas.

171 Criminal Law 110 €=>627.8(6)

1 10 Criminal Law
liOXX Trial

l i0XX(A) Preliminary Proceedings

1 10k627,5 Discovery Prior to and Incid-
ent to Trial

110k627.8 Proceedings to Obtain Dis-
closure

1 10k627.8(6) k. Failure to Produce
Information. Most Cited Cases

Trial court would not sanction prosecution, in
capital murder case, for inadvertently making third
party subpoenas returnable at prosecution's office
rather than court, when there was no showing of
prejudice to defendant. McKinney's CPL § 610,25,

**267*201 Kevin M. Doyle, Capital Defender (
William T. Easton and Patricia Warth of counsel),
and Peter J. Pullano for Defendant.

Howard R. Relin, District Attorney of Monroe
County (Miehael C. Green and David A. Foster of
counsel), for plaintiff.

DAVID D. EGAN, J.

This is a death penalty case. Defendant alleges
that the District Attorney obtained potential evid-
ence pursuant to several improperly issued sub-
poenas duees tecum. Defendant seeks various relief
ranging from striking the Notice of Intent to Seek
the Death Penalty to suppression. This Court signed
subpoenas duces tecum at the People's request dir-
ected to Defendant's educational institutions and
employer, as well as correctional facilities and law
enforcement ageneies. Subpoenas *202 duees
tecum were also issued to loeal area hospitals seek-
ing reeords relating to Defendant's relatives.

The People served subpoenas duces tecum on
several educational institutions, including the Web-
ster Central Sehool District, Monroe Community
College, Medaille College, and the State University
of New York, College of Broekport, dated Decem-
ber 1, 1999 and returnable before this Court on
December 15, 1999. The subpoenas, eaptioned
People v, John F. Owens, sought production of
“any and all reeords, including but not limited to
academic and disciplinary reeords relating to
JOHN F. OWENS, DOB 1/20/62,” were signed by
the District Attorney, and contained a notice at the
bottom that “[mjaterials specified to be produced
will be retained in the custody of the Court.”

The State University of New York, College of
Broekport and Medaille College, by letters da led

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1329

Page 3

188 Misc.2d 200, 727 N.Y,S.2d266, 2001 N.Y. Slip Op. 2*204
(Cite as; 188 M«sc.2d 200, 727 N.Y.S.2d 266)

December 8, 1999 and December 9, 1999 respect-
ively, indicated that they had no record of Defend-
ant's attendance at their institutions. The other two
institutions produced records.

Defendant argues that due to their abuse of pro-
cess, the People should be precluded from any use
or derivative use of these subpoenaed school re-
cords. The People oppose Defendant’s motion ar-
guing he has no standing to challenge these sub-
poenas.

[1][2] Defendant relies on 20 USC § 1232g, the
Family Rights and Privacy Act of 1974 (‘TERPA"),
to assert a privacy interest in the subpoenaed school
records, and substantiate his standing. Defendant
has no proprietary or privacy interest in his school
records. Under 20 USC § 1232g Congress limited
the dissemination of education records to third-
parties without the written consent of a parent or
adult-student There are, however, exceptions
to this general rule of non-disclosure; one specific-
ally permits disclosure to state or federal law en-
forcement in response to a subpoena. 20 USC §
1232g(b)(l)

FN1. The schools apparently produced
these records in response to the subpoenas
without ehallengc or notice to Defendant.
Defendant asserts he became aware of the
subpoenas when the People produced and
delivered copies of the subpoenaed reeords
to him. The statute provides for withhold-
ing funds from an institution that responds
to a subpoena without giving notice of the
subpoena to the student. 20 USC §
1232g(b)(2). While Defendant may have a
claim to file with the overseers of federal
educational funds regarding lack of notice,
any failure by the educational institution to
give notice to Defendant docs not effect
the validity of the subpoena.

**268 *203 Defendant thus lacks standing to
challenge the subpoenas. “[T]his case is governed
by the general rule that the issuance of a subpoena

to a third party to obtain the records of that party
does not violate the rights of a defendant, even if a
criminal prosecution is contemplated at the time the
subpoena is issued [eitations omitted].” United
States v. Miller, 425 U.S. 435, 444, 96 S.Ct. 1619,
48 L.Ed.2d 71 (1976) (decided before the enact-
ment of 12 USC § 3410, providing standing to a
bank customer to quash a subpoena for his financial
records). See also, People v. DiRaffaele, 55 N.Y. 2d
234, 448 N.Y.S.2d 448, 433 N.E.2d 513 (1982);
People v. Orzci, 192 A.D.2d 818, 596 N.Y.S.2d 556
(3rd Dept. 1993).

[3] Defendant does not argue that he has a pri-
vacy or propriety interest in the documents the
People subpoenaed from Monroe County Sheriffs
Department,^ Jail Division, Groveland Correctional
Facility , Monroe County Probation Depart-
ment, New York State Division of Parole. Defend-
ant's ehief complaint is that the records from these
institutions and ageneies eontain material governed
by certain statutory privileges, such as the physi-
cian-patient privilege under Civil Practice Law and
Rules (“CPLR”) §§ 4504; 4507.

FN2. This subpoena was sent with a cover
letter dated December 2, 1999 asking the
records be sent to this Court.

All of Defendant's records from the Monroe
County Sheriffs Department, Jail Division, Grove-
land Correctional Facility and Monroe County Pro-
bation Department were delivered to the Court. The
New York State Division of Parole by letter dated
December 3, 1999 indicated that it did not possess
any responsive documents, sinee as a policy it only
retains records for three years after maximum ex-
piration. By earlier motion,

Defendant [ ] asked this Court to sign a subpoena
seeking the records of the Monroe County De-
partment of Probation, including presentence in-
vestigation reports prepared in connection with
defendant's prior eriminal convictions. The de-
fense intcnd[ed] to use the presentenee reports
and other reeords both to dissuade the District

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1330

Page 4

188 Misc.2d 200, 727N.Y.S.2d 266, 2001 N.Y. Slip Op. 21204
(Cite as: 188 Misc.2d 200, 727 N.Y,S.2d 26ft)

Attorney from seeking the death penalty and to
prepare for mitigation in the sentencing phase of
trial, The People [did] not oppose Defendant's re-
quest, but rather askfed] this Court for similar ac-
cess to these reports.

People v, Owens, 183 Misc.2d 208, 209, 703
N.Y.S.2d 881 (Mon.Cty.Ct. 1999). This Court al-
lowed disclosure to the defense and the People, ex-
cept it found that disclosure should not extend to
“sealed *204 reeords arising out of any youthful of-
fender adjudication afforded the defendant,” Id.

This Court is aware that a prisoner's medical
information is not subjeet to disclosure unless such
inmate's health is at issue. 7 New York Codes,
Rules and Regulations (N.Y.CRR) § 5.24(5) (2001)
Indeed for this very reason this Court conducted
an in camera review of the records it received from
these institutions and agencies, and removed, or
otherwise redacted, any privileged materials. The
Court further redacted any youthful offender in-
formation in accordance with its previous deeision.
See Id. For the same reason, this Court has not dis-
closed Defendant's medical records subpoenaed by
the People from the Occupational Health Connec-
tion and returnable on August 18, 2000.

The People also directed subpoenas duees
tecum to Defendant's employer. Labor Ready. This
Court finds Defendant again lacks standing to chal-
lenge the subpoenas. **269 Accord People v. Santi-
ago, unpublished p. 2 (Mon. Cty. Ct. [Bristol, J.]
March 26, 1999).

[4] Finally, the People issued subpoenas duces
tecum, which were returnable to this Court, seeking
the medical records of Defendant's family members
from local area hospitals. Defendant lacks standing
to challenge these subpoenas. “[A] subpoena may
only be challenged by the person to whom it is dir-
ected or by a person whose property rights or priv-
ileges may be violated.” In re Selesnick, 1 1 5
Mise.2d 993, 995, 454 N.Y.S.2d 656 (Sup.Ct. N.Y.
Cty. 1982). Defendant argues, however, that it
would impose an additional burden on him to re-

quire his family members, including some who live
outside of New York, to challenge the validity of
such subpoenas. This Court has these medical re-
cords in its possession. People v. Natal, 75 N.Y.2d
379, 385, 553 N.Y,S.2d 650, 553 N.E.2d 239
(1990) (citations omitted); see CPL § 610.25(1).
The records will not be released to the People un-
less and until they become relevant to an issue at
trial. Defendant's family members thus will have
ample opportunity to seek to quash or otherwise
challenge the validity of sueh subpoenas at that
time.

[5] Defendant argues he is entitled to relief re-

gardless of his standing sinee the People abused
process by failing to provide him with notice of all
the subpoenas pursuant to CPLR § 2307. Defendant
only learned of the subpoenas when the People, at
this Court’s direction, reproduced the subpoenaed
documents and delivered them to him. CPLR §
2307 is not applicable to subpoenas issued by the
People pursuant to CPL § 610.20(2). See Matter of
Irwin v. Board of Regents, 27 N.Y.2d 292, 317
N.Y. S. 2d 332, 265 N.E.2d 752 (1970); *205 People
v. Cajigas, 10/28/97 NYU 30, col. 3 (Wcstehester
Cty. Ct. (Angiolillo, J.] 1997); People v. Hall, 179
Misc.2d 488, 490, 686 N.Y.S.2d 551

(Sup.Ct.Mon.Cty.1998). Cf People v. Owens, 182
Misc.2d 794, 701 N.Y.S.2d 602

(Sup.Ct.Mon.Cty.1999). The Legislature has given
the Distriet Attorney the authority to issue both
Grand Jury subpoenas and trial subpoenas. Crimin-
al Procedure Law (“CPL”) § 610.20(2); see
610.20(3) (applying equally to subpoenas duees
tecum). The disparity between subdivision (2) and
(3) of CPL § 610.20 clarify that the Legislature
made a distinction between the notice requirement
attaehed to subpoenas issued by the People versus
those issued by a defendant. The People have dis-
cretion to “ issue subpoenas duces tecum without
notice to [a] defendant or the sanction of the court.”
People v. Halt, supra.

[6] Defendant further argues that notions of
reciprocity require that he be given notice of the

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1331

Page 5

1 88 Misc.2d 200, 111 N.Y.S.2d 266, 2001 N.Y. Slip Op. 21204
(Cite as: 188 Misc.2d 200, 727 N.Y.S.2d 266)

People's subpoenas. See Wardius v. Oregon , 412
U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973).
This Court addressed in part any potential prejudice
that might arise due to the lack of reciprocity of the
statutory notice provisions by ensuring Defendant's
access to the materials before trial. After signing
the subpoenas, this Court specifically dirceted the
People to reproduce and provide copies of any ma-
terials obtained through the issuance of the sub-
poenas daces tecum to the defense.

[7] Defendant avers that the People abused pro-
cess by making the subpoenas returnable, to their
office, A subpoena duees tecum issued for docu-
ments that may be introduced at trial is returnable
to the Court. The Court determines the terms of
possession of subpoenaed material. CPL § 610.25.
"It is for the court, not the prosecutor, to determine
where subpoenaed materials should be deposited, as
well as any disputes regarding production.” People
v. Natal, supra. The People**270 acknowledge that
some records were inadvertently delivered to their
office, but affirm under oath that they did not re-
view or copy those records before they delivered
them to this Court.

^N^While not condoning the practice of the People

, this Court finds no dereliction of the People's
duty as officers of the Court or prejudice resulting
to Defendant. Cf. People v. Warm us, 148 Misc.2d
374, 380-384, 561 N.Y.S.2d 111 (Westchester Cty.
Ct.1990).

FN3. The People should by eover letter
clarify that all subpoenaed materials were
returnable to the Court.

Defendant asserts the People abused process by
seeking materials that are not relevant to any issue
before this Court. A subpoena duces tecum is de-
signed “to eompel the production *206 of specific
documents that are relevant and material to facts at
issue in a pending judicial proceeding.” Matter of
New York Slate Dept, of Labor v. Robinson, 87
A.D.2d 877, 878, 449 N.Y.S.2d 321 (2nd
Dept. 1982). However, it may not be used to cir-

cumvent the diseovery provisions of CPL §§ 240.20
and 240.40. People v. Gissendatmer, 48 N.Y,2d
543, 551, 423 N.Y.S.2d 893, 399 N.E.2d 924
(1979), or "to ‘fish for impeaching material’ ” Con-
stantine v. Leto, 157 A.D.2d 376, 378, 557
N.Y.S.2d 611 (3rd Dept.1990), ajfd 77 N.Y.2d
975, 571 N.Y.S.2d 906, 575 N.E.2d 392 (1991). A
showing that certain documents carry a potential for
establishing relevant evidence is insufficient; in-
stead, a defendant must put forth "some factual pre-
dicate” which would make it reasonably likely that
documentary information will bear relevant and ex-
culpatory evidence. People v, Gissendanner, supra.
at 550, 423 N.Y.S.2d 893, 399 N.E,2d 924. Since
this Court finds Defendant lacks standing to chal-
lenge the subpoenas in question, and no misuse of
proeess by the People, this Court finds no need to
address Defendant's claim of irrelevance. Suffice it
to say, this Court finds that the subpoenaed materi-
als are relevant and material to facts at issue in this
pending capital trial.

The capital cases relied upon by Defendant are
distinguishable. See People v. Simpkins, unpub-
lished, p. 4-5 (Sup.Ct. Kings Cty. [Tomei, J.]
December 16, 1998) (court refused to reissue sub-
poenas for defendant's school records finding them
irrelevant to the determination of whether the Dis-
trict Attorney should seek the death penalty);
People v. Campos, unpublished, p. 4-5 (Sup.Ct.
Kings Cty. [Demarest, J.} March 26, 1998) (court
found Defendant's former correctional records irrel-
evant to the determination of whether the District
Attorney should seek the death penalty); People v.
Cajigas, unpublished and on the record, Tr. 9
(Westchester Cty. Ct. [Angiolillo, J.] April 23,
1997) (found subpoenas for school records to be is-
sued prematurely, but left opened the possibility of
future relevance on issues of voluntariness of state-
ments, rebuttal of mitigation evidence and mental
condition of defendant).

For the foregoing reasons, Defendant's motion
entitled DEF-61 is denied in its entirety.

N.Y.Sup.,2001.

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1332

Page 6

188 Misc.2d 200, 727N.Y.S.2d 266, 200! N.Y, Slip Op. 21204

(Cite as: 188 Misc.2d 200, 727 N.Y.S.2d 266)

People v. Owens

188 Misc.2d 200, 727 N.Y.S.2d 266, 2001 N.Y.
Slip Op. 21204

END OF DOCUMENT

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1333

Westiaw,

187 Misc.2d 624, 725 N. Y.S.2d 532, 2001 N, Y. Slip Op. 21176
(Cite as: 187 Mise.Zd 624, 725 N.Y.S.2d 532)

Pagel

Supreme Court, Monroe County, New York,

The PEOPLE of the State of New York, Plaintiff,
v.

JohnF. OWENS, Defendant.

March 30, 2001.

On defendant's motion to compel disclosure of
information regarding prosecution's survey of po-
tential jurors, the Supreme Court, Monroe County,
David D. Egan, J., held that defendant in death pen-
alty case was not entitled to disclosure of People's
work product in form of survey of 432 jury-eligible
persons, absent actual prejudice resulting from sur-
vey.

Motion denied.

West Hcadnotes

Sentencing and Punishment 350II ^=>936

350H Sentencing and Punishment
350HIV Sentencing Guidelines
350H1V(H) Proceedings
350HJV(H)1 In General

350Hk936 k. Other Discovery and Dis-
closure. Most Cited Cases

Defendant in death penalty case was not en-
titled to disclosure of People’s work product in form
of community attitude survey of 432 jury-eligible
persons, absent actual prejudice resulting from sur-
vey; survey predated draw of jiuy pool in case, only
one prospective juror revealed knowledge of the
survey, and defendant had unlimited opportunity to
question that juror concerning any racial biases,
prc-eonceived attitudes about the death penalty, and
any other matter.

**533*624 Kevin M. Doyle, Capital Defender
(William T. Easton and Patricia Warth of eounsel),
and Peter J. Pullano for Defendant.

Howard R. Relin, District Attorney of Monroe
County (Michael C. Green and David A. Foster of
counsel), for plaintiff.

DAVID D. EGAN, J.

This is a death penalty case. On Mareh 15,
2001 defendant filed a "Motion in Limine To Com-
pel the Prosecution to Disclose All Information Re-
garding Its Survey of Potential Jurors.” In the al-
ternative, defendant seeks an in camera review of
such information. On March 16, 2001 the People
filed an affirmation opposing defendant's motion.
On March 16, 2001 this *625 court, on the record,
denied defendant's motion entitled DEF-73 in its
entirety.

The survey eame to the court's attention when a
prospective juror during individual voir dire in-
formed the court that his spouse had received a call
from an unidentified pollster concerning a capital
murder trial, specifically identifying the race and
gender of the defendant and the victim.

The People admit that at their behest a
“community attitude survey was conducted between
July 24, 2000 and July 3 1 , 2000 in Monroe County.
Four hundred and two jury-eligible subjects were
randomly contacted by telephone.” Defendant al-
leges that the use of the survey by the People ad-
versely affected jury selection in this capital case.

On August 4, 2000 the Monroe County Com-
missioner of Jurors (Commissioner) drew a jury
pool of two thousand two hundred (2,200) prospect-
ive jurors for this ease. The Commissioner mailed
two thousand two hundred (2,200) summonses to
prospective jurors on August 10, 2000. On Septem-
ber 6, 2000 jury selection commenced when seven
hundred (700) prospective jurors complied with the
Commissioner summonses and appeared to com-
plete this eourt's written questionnaire. Individual
voir dire pursuant to Criminal Procedure Law (
CPL) § 270.16(1) commenced on September 27,

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1334

Page 2

187 Misc.2d 624, 725 N.Y.S.2d 532, 200! N.Y. Slip Op. - 176
(Cite as: 187 Misc.2d 624, 725 N.Y.S.2ci 532)

2000 .

Defendant failed to show any aetual prejudice
resulting from the People's survey of the com-
munity and, thus, disclosure of the People's work,
product is not warranted. This eourt finds the sur-
vey predated the draw of the jury pool for this ease.
Only one prospective juror revealed knowledge of
the survey out of the five hundred and ninety-one
(591) prospective jurors who underwent individual
questioning, or were excused by consent of the
parties. As with all prospective jurors, defendant
had an unlimited opportunity to **534 question that
juror concerning any racial biases, pre-coneeivcd
attitudes about the death penalty, and any other
matter the defendant deemed appropriate.

Defendant's motion entitled DEF-73 is denied
in its entirety.

N.Y.Sup.,2001.

People v. Owens

187 Misc.2d 624, 725 N.Y.S.2d 532, 2001 N.Y.
Slip Op. 21176

END OF DOCUMENT

C> 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1335

Westiaw.

Not Reported in N.Y.S.2d, 2001 WL 1035087 (N.Y.Snp,), 2001 N.Y. Slip Op. 40120(U)
(Cite .is: 2001 WL 1035087 (N.Y.Sup.))

Page 1

H

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK
v.

JOHN F. OWENS, Defendant.

Ind. #547/99 Consolidated with Ind. #414/99
DATED: April 2, 2001, Rochester, New York

HOWARD R. RELIN, ESQ. Monroe County Dis-
trict Attorney MICHAEL C. GREEN, ESQ. Assist-
ant District Attorney DAVID A. FOSTER, ESQ.
Assistant District Attorney FOR THE PEOPLE

KEVIN M. DOYLE, ESQ. Capital Defender (Willi-
am T. Easton, Esq., First Deputy Capital Defender,
Patricia Warth, Esq., Deputy Capital Defender)
PETER J. PULLANO, ESQ FOR DEFENDANT

EGAN, J.;

*1 This is a death penalty ease. The Distriet At-
torney filed a Notice of Intent To Seek The Death
Penalty pursuant to Criminal Procedure Law (CPL)
§250.40 (2001) on January 24, 2000. In the midst
of the presentation of evidence at trial, Defendant
filed his “Renewed Motion to Strike The District
Attorney’s Notice to Seek The Death Penalty,” ask-
ing this Court to revisit its decision entitled DEF-
25, entered on Mareh 16, 2001. See People v.
Owens, DEF-25, unpublished (Sup. Ct. Mon. Cty.
[Egan, J.] March 16, 2001). In the alternative. De-
fendant asks this Court to deelare a mistrial, re-
move the District Attorney's office from this case
and appoint a special prosecutor in their stead. The
People made no submissions in response to Defend-
ant's renewed motion.

This Court denied Defendant's motion entitled
DEF-25 challenging the constitutionality of New
York's death penalty statute in its entirety. Id. De-
fendant asks this Court to reeonsider its earlier de-
cision since “the decision makers in his case acted
with a discriminatory purpose.” Specifically, De-
fendant takes issue with this Court’s prior finding
that:

There is no evidence that New York’s death
penalty statute has been applied to discriminate
against any constitutionally protected class. The
statute does not single out a constitutionally protec-
ted class, only a speeific subclass of murderers.
People v. Mateo, 175 Misc. 2d 192, unpublished
portion, p. 14 (Mon. Cty. Ct. 1997). Defendant
moreover has failed to show that the alleged dis-
criminatory scheme has had “a discriminatory ef-
fect on him.”

Id. at 292.

Defendant argues that the People “engaged in
’racial profiling' with their use of a 'community atti-
tude survey,”' and this Court failed to evaluate how
such survey undermined Defendant's state and fed-
eral constitutional rights to equal protection. U.S.
Constitution, 8th & 14th Amd.; New York Consti-
tution, Art. 1, §§5 &1 1. In support, Defendant sub-
mits an affidavit from a jury selection and public
opinion survey expert who maintains that the use of
sueh survey while a death notice is pending is im-
proper and unethical. The expert specifically states
the likely

purpose of the poll was to facilitate the prosec-
ution's ability to identify and seat jurors who would
laek impartiality in a capital trial involving a black
defendant and white victim[,J * * *

whose raeism was not so apparent, and to use
the information either to aid in shaping the jury or
developing a trial strategy or both * * *

[and] to determine the likelihood, based on

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1336

Page 2

Not Reported in N.Y.S.2H, 2001 WL ^ 035087 (N.Y.Sup.Y 2001 N.Y. Slip Op. 40120(U)

(Cite as: 2001 WL 103S087 (N.Y.Sup.j)

community attitudes, that the People could obtain a
death penalty in the case at trial, or whether it
would be prudent to offer the defendant the oppor-
tunity to plead guilty.

*2 Declaration of Edward J. Bronson, Ph.D. p.
9, p. 12 & p.4 n.2

The survey came to this Court's attention when
a prospective juror during individual voir dire in-
formed the Court that his spouse had received a call
from an unidentified pollster concerning a capital
murder trial, specifically identifying the race and
gender of the defendant and the victim. The
People admit that at their behest a “community atti-
tude survey was conducted between July 24, 2000
and July 3 1 , 2000 in Monroe County. Four hundred
and two jury-eligible subjects were randomly con-
tacted by telephone.”

Assuming arguendo, that Defendant's expert
correctly identified the People's purposes in using
the survey, this Court finds Defendant's challenge
without merit. This Court recently denied Defend-
ant's motion to compel the People to disclose ait in-
formation regarding its survey, finding Defendant
failed to show any actual prejudice* . People v.
Owens, DEF-73, unpublished (Sup. Ct. Mon. Cty.
[Egan, J.] March 30, 2001). The People's survey
predated the draw of the jury pool in this case. As
this Court previously found:

FN1. This Court takes no position on the
District Attorney's use of such surveys, and
its decision should not be viewed as an en-
dorsement of such practice.

Only one prospective juror revealed knowledge
of the survey out of the five hundred and ninety-one
(591) prospective jurors who underwent individual
questioning, or were excused by consent of the
parties. As with all prospective jurors, Defendant
had an unlimited opportunity to question that juror
concerning any racial biases, pre-conceived atti-
tudes about the death penalty, and any other matter
the Defendant deemed appropriate.

Jd. at 2.

This Court also does not find that sueh a survey
influenced the People's determination on whether
to offer Defendant an opportunity to plead guilty.
The District Attorney has a one hundred and twenty
(120) day window to decide whether to seek the
death penalty. CPL. §250.40. Once a Notice ofln-
tent to Seek the Death Penalty is pending, a defend-
ant docs not have an unconditional right to plead
guilty to First Degree Murder. Instead during the
pendency of a Notice, a defendant may plead guilty
only to a noncapital offense. Hynes v. Tomci, 92
NY2d 613, 629 (1998).

The People's survey postdated the filing of the
death notice by approximately six months in this
case. More important, Defendant did not seek to
enter a guilty plea, either before or after the District

Attorney filed the Notice of Intent to Seek the
FN2

Death Penally

FN2. Defendant never explored the possib-
ility of entering a guilty plea to the full in-
dictment, even though this Court is aware
that the District Attorney might have enter-
tained the same before the Notice of Intent
to Seek the Death Penalty was filed.

*3 Defendant also avers that the “widely diver-
gent standards” of District Attorneys in seeking the
death penalty between counties and within counties
violates his rights to equal protection under the law.
Defendant relies on updated statistics, and again
emphasizes that the Monroe County District Attor-
ney has sought the death penalty at the highest rate
of any District Attorney in New York State. De-
fendant also relies on the United States Supreme
Court's recent decision in Bush v. Gore, 531 US 98,

, 121 S. Ct. 525, 531 (2000), where the Court

found, in the context of a challenge to the recount
of ballots relating to the most recent Presidential
election, that since “standards for accepting or re-
jecting contested ballots might vary not only from
county to county but indeed within a single county.
. . [it was] not a process with sufficient guarantees

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1337

Page 3

Not Reported in N.Y.S,2d, 2001 WL 1035087 (N.Y.Sup,), 2001 N.Y. Slip Op. 40120(D)

(Cite as: 2001 WL 1035087 (N.Y.Sup.))

of equal treatment.”

In Bush the Supreme Court stated:

The question before the Court is not whether
local entities, in the exereise of their expertise, may
develop different systems for implementing elec-
tions. Instead, we are presented with a situation
where a state court with the power to assure uni-
formity has ordered a statewide recount with min-
imal procedural safeguards. When a court orders a
statewide remedy, there must be at least some as-
surance that the rudimentary requirements of equal
treatment and fundamental fairness are satisfied.

Id. at 532.

This Court finds that nothing in Defendant's
additional submission alters its earlier decision.
People v. Owens, DEF-25, supra. The District At-
torney has not been given “unbridled discretion” to
seek the death penalty. The legislature designed the
death penalty statute to include procedural safe-
guards restricting its imposition (People v. Owens,
DEF-25, supra, at 3-4), assuring “the rudimentary
requirements of equal treatment and fundamental
fairness are satisfied.” See Bush v. Gore, supra.

Defendant's renewed motion entitled DEF-76 is
denied in its entirety.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v. Owens

Not Reported in N.Y.S.2d, 2001 WL 1035087
(N.Y.Sup.), 2001 N.Y. Slip Op. 40120(D)

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1338

Westiaw,

1 87 Misc.2d 838, 725 N.Y.S.2d 178, 2001 N.Y. Slip Op. 21197
(Cite as: 187 Misc.2d 838, 725 N.Y.S.2d 178)

Page 1

«

Supreme Court, Monroe County, New York.
The PEOPLE of the State of New York, Plaintiff,
v.

John F. OWENS, Defendant.

April 6, 200 1 .

Defendant charged with capital murder and
rape moved for order suppressing results from
People's deoxyribonucleic acid (DNA) testing, or in
alternative to conduct Frye hearing. The Supreme
Court, Monroe County, David D. Egan, J., held
that Short Tandem Repeat (STR) DNA profiling,
using AmpF/STR Profiler Plus and Cofiler PCR
kits, is reliable and generally accepted by scientific
community.

Motion denied.

West Headnotes

[1} Criminal Law 110 £>=>388.2

1 10 Criminal Law
11 OX VI (Evidence

1 10XV11(I) Competency in General

1 10k388 Experiments and Tests; Scientif-
ic and Survey Evidence

1 10k388.2 k. Particular Tests or Ex-
periments. Most Cited Cases

Short Tandem Repeat (STR) deoxyribonucleic
acid (DNA) profiling, using AmpF/STR Profiler
Plus and Cofiler PCR kits, are reliable and gener-
ally accepted by scientific community.

(2] Criminal Law 110 £>=>388.1

1 10 Criminal Law
1 1 OX VII Evidence

1 10XVII(1) Competency in General

I !0k388 Experiments and Tests; Scientif-
ic and Survey Evidence

1 10k388,l k. In General. Most Cited

Cases

General scientific acceptance, not universal ac-
ceptance, is required for the admission of scientific
evidence.

(3] Criminal Law 110 €=<695.5

i 1 0 Criminal Law
110XX Trial

1 !0XX(D) Procedures for Excluding Evid-
ence

1 10k695.5 k. Hearing, Ruling, and Objec-
tions. Most Cited Cases

Novel scientific evidence may be admitted
without any hearing at all by the trial court.

|4] Criminal Law 110 <£=>388.2

1 10 Criminal Law
110XV1I Evidence

1 1 OX VI 1(1) Competency in Genera!

1 10k388 Experiments and Tests; Scientif-
ic and Survey Evidence

I10k388.2 k. Particular Tests or Ex-
periments. Most Cited Coses

Claims concerning protocols and procedures of
laboratories that conducted Short Tandem Repeat
(STR) DNA profiling, using AmpF/STR Profiler
Plus and Cofiler PCR kits, went to foundation or
weight of test results, not to whether such method
of testing was reliable and generally accepted by
scientific community.

[5j Criminal Law 110 £>=>404.11

1 10 Criminal Law
1 1 OX VII Evidence

1 10XVI1(K) Demonstrative Evidence

1 10k404,I0 Foundation or Authentication
110k404.i 1 k. In General. Most Cited

Cases

Foundation concerns itself with the adequacy
of the specific procedures used to generate the par-
ticular evidence to be admitted.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1339

Page 2

21197

187 Misc.2d 838, 725 N.Y.S.2d 178, 2001 N.Y. Slip Op.
(Cite as: 187 Mise.2d 838, 725 N.Y.S.2d 178)

**179*838 Kevin M. Doyle, Capital Defender
(William T. Easton and Patricia Warth of counsel),
and Peter J. Pullano, for Defendant.

Howard R. Relin, District Attorney of Monroe
County (Michael C. Green and David A. Foster of
counsel), for plaintiff.

DAVID D. EGAN, J.

This is a death penalty case. Defendant John
Owens moves this court for an order suppressing
the results from the People’s *839 Deoxyribonuc-
leic Acid (DNA) testing, or in the alternative to
conduct a Frye hearing. Frye v. United Staten, 293
F. 1013 (D.C.App.1923). The People oppose the
motion.

Defendant is being tried for crimes against
three victims arising out of separate incidents that
occurred within a two month period in 1999.
Counts One and Three of Indictment No. 547/99
arise out of the murder of Rosemarie Constantino,
who was killed in the course of a rape in the Maple-
wood area in the City of Rochester on April 28-29,
1999, and charge defendant with Murder, First De-
gree (Penal Law § 125.27(a)(vii) and (b)), and
Murder, Second Degree (Penal Law § 125.25(1)),
respectively. Counts Two and Four of the same In-
dictment and Count One of Indictment No. 414/99
(previously consolidated by Order of this eonrt
dated November 22, 1999) arise out of the alleged
murder and rape of Sherry Tuthill at 200 Merlin
Street, City of Rochester on May 30- June 1, 1999.
See People v. Owens, DA-1, unpublished (Mon.
Cty. Ct. (Egan, J.] November 22, 1999). Defendant
is charged with Murder, First Degree (Penal Law §
!25.27(a)(vii) and (b)). Murder, Second Degree (
Penal Law § 125.25(1)) and Reekless or Depraved
Indifference Murder, Second Degree (Penal Law §
125.25(2)) relating to this incident. Counts Five and
Six both eharge Defendant with Rape, First Degree
(Penal Law § 130,35(1)), arising out of the alleged
rapes of “R. L.” on June 6, 1999.

The People allege that defendant raped all three

victims, choked them and beat them about the head.
Bloodstains were collected from objects at two of
the crime scenes located below the Driving Park
**180 Bridge, and at 6 Whitney Street, and at de-
fendant's apartment at 73 Walnut Street, all in the
City of Rochester. Semen samples and bloodstains
also were collected from the victims and their
clothing. All bloodstains and semen samples were
compared with blood drawn from the defendant and
the victims

At the People's request, the Monroe County
Public Safety Laboratory (MCPSL) and Cellmark
Diagnostic Laboratory (Cellmark) conducted DNA
testing, analyzing different loci or areas of the
DNA. Both MCPSL and Cellmark initiated their
DNA testing with PCR amplification, but then used
different DNA profiling or typing methods. MCPSL
used a polymarker reverse dot blot system, the
Amplitypc PM (Polymarker) & DQA1. Cellmark
used a short tandem repeat (STR) analysis.

The MCPSL report indicates the DNA profile
of all of the sperm samples matched exactly the
DNA profile of the blood *840 sample of the de-
fendant at six (6) loci analyzed (using the Poly-
marker and DQAI analysis). The probability of ran-
domly selecting an unrelated person having the
same Polymarker and DQA1/DNA profile as de-
fendant and the sperm fractions on the vaginal
swabs from Rosemary Constantino, Sherry Tuthill,
and R.L. and on the swab from the knee of Sherry
Tuthill is approximately 1 in 6,100 African Americ-
ans, 1 in 380,000 Caucasians, 1 in 169,000 Hispan-
ies, and 1 in 221,000 Japanese.

The Polymarker and DQA1/DNA profile of the
blood found both in the kitchen and on the porch of
defendant's apartment matched the DNA profile of
Sherry Tulhill's blood. Finally, the same type of
DNA profiling indicated the blood found on a
sweatshirt in the defendant's apartment matched the
DNA profile of R.L's blood.

Defendant does not dispute the general accept-
ance by the scientific community of Amplitype PM

© 20 1 1 Thomson Reuters. No Claim to One. US Gov. Works.

1340

Page 3

187-Misc.2d 838, 725 N:Y:S.2d ] 7B, 2001 N.Y. Slip Op. 21 1 97
(Cite as: 187 Misc.2d 838, 725 N.Y.S.2d 178)

(Polymarker) & DQA1 (DNA) analysis use by the
Monroe County Public Safety Laboratory. See
People v. Hamilton, 255 A.D.2d 693 , 694, 68!
N.Y.S.2d 117 (3rd Dept), Iv. denied 92 N.Y,2d
1032, 684 N.Y.S,2d 497, 707 N.E.2d 452 (1998);
People v. Morales , 227 A.D.2d 648, 643 N.Y.S.2d
217 (2nd Dept.), tv. denied 89 N.Y.2d 926, 654
N.Y,S.2d 729,677 N.E.2d 301 (1996).

Cellmark's report indieated the DNA profile of
all of the sperm samples matched exactly the DNA
profile of defendant's blood sample at the thirteen
(13) short tandem repeat (STR) loci tested. The
probability of randomly selecting an unrelated per-
son having the same STR/DNA profile as defendant
and the sperm fractions from the vaginal swabs of
Rosemary Constantino, Sherry Tuthiil, and R.L.
and from the swab from the knee of Sherry Tuthiil
is approximately 1 in 18 x 10 to the 18th African
Americans, and 1 in 6.5 x 10 to the 21st Caucasi-
ans.

A STR/DNA profile of the blood found both in
the kitehen and on the porch of defendant's apart-
ment matched the STR/DNA profile of Sherry Tut-
hilPs blood. Finally, a STR/DNA profile of blood
found on a sweatshirt in the defendant's home
matched the STR/DNA profile of R.L. ’s blood.

[1] Defendant maintains the Short Tandem Re-
peat (STR) DNA profiling, using the AmpF/STR
Profiler Plus and Cofiler PCR kits are not reliable
or generally aecepted by the scientific community.
Specifically, defendant argues that AmpF/STR Pro-
filer Plus and Cofiler PCR kits have not been sub-
jected to peer review and validation.

This court denied defendant's request for a
Frye hearing on the record on March 20, 2001. See
Frye, supra. No **181 one contests the admissibil-
ity of expert testimony concerning the *841 poly-
merase chain reaction (PCR) method used in the
DNA testing. PCR allows for the amplification or
ehcmical copying of DNA samples. “The reliability
of the PCR method has gained general acceptance
in the scientific community.” People v. Fontanez,

278 A,D.2d 933, 718 N.Y.S.2d 541, 544 (4th
Dept. 2000) (citation omitted); see People v. Lin,
267 A.D.2d 256, 256-57, 699 N.Y.S.2d 294 (2nd
Dept. 1999), Iv. denied 94 N.Y.2d 951, 710
N.Y.S.2d 8, 731 N.E.2d 625 (2000); see People v.
Hall, 266 A.D.2d 160, 160-61, 700 N.Y.S.2d 105
(1st Dept. 1999), Iv. denied 94 N.Y.2d 948, 710
N.Y.S.2d 4, 731 N.E.2d 621 (2000); People v.
Hamilton, supra, at 694, 681 N.Y.S.2d 117.

PCR short tandem repeat (STR) profiling meth-
ods involve the generally accepted procedures en-
tailed with PCR using a number of loci known as
short tandem repeats. Short tandem repeats (STR)
contain repeat units that are two (2) to six (6)
basepairs in length. The STRs can be readily ampli-
fied with polymerase chain reaction (PCR).

With the Profiler Plus and Cofiler PCR, visual-
ization of the DNA is accomplished with the use of
a fluorescent tag primer. The Profiler Plus and
Cofiler PCR target nine and six STRs, respectively.
Electrophoresis is done through a capillary instead
of a gel as with some other amplification kits. As
the DNA, in order of its size, passes through the ca-
pillary a laser is directed at it. The laser excites the
fluorescent tag, giving off a particular wavelength,
which in turn is detected by a machine called a 310
Genetic Analyzer. The fluoreseenec passing by the
window ereates a profile of peaks, measured on
fluoreseent units. Two peaks will appear for each
loeus, one peak for each allele. Through a series of
comparisons with eontrols that are also run on the
capillary, one ean translate the peaks into the num-
ber of repeats. See National Institute of Standards
and Technology, STR Typing Technology Review
(January 30, 2001); People v. Pfenning, unpub-
lished, Docket No. 57-4-96 (Vt. Dist. Ct.
[Kupersmith, J.J April 6, 2000).

[2] Courts throughout the country have found
that the Short Tandem Repeat (STR) DNA profil-
ing, using the AmpF/STR Profiler Plus and Cofiler
PCR kits are reliable and generally accepted by the
scientific community. People v. Phillips, unpub-
lished (Mich. Cir. Ct., Kent Cty. [Kolenda, J.] Oc-

© 2011 Thomson Reuters. No Claim to Orig, US Gov. Works.

1341

Page 4

2! 197

187 Misc.2d 838, 725 N.Y.S.2d 178, 2001 N Y. Slip Op.
(Cite ns: 187 Misc.ld 838, 725 N,Y.S.2d 178)

tober 25, 2000); People v. Kopp, unpublished
(Mich. Cir. Ct, Kent Cty. [Soet, J,] October 20,
2000); People v. Cavin, unpublished. No.
00-4395-FY (Mich. Cir. Ct., Lake Cty. [Cooper, J.]
October 18, 2000); People v, Elizarraras, unpub-
lished, Case No. 50651 (Cal. Sup.Ct,, Tulare Cty.
[Kalashian, J.] October 13, 2000); State v. Dish-
mon, unpublished. No. 99047345 (Minn. Dist. Ct,
Hennepin Cty. [Anderson, J.} March 3, 2000); State
v, Lynch, unpublished, CR. No. 98-11390 (Az
Sup.Ct., Maricopa Cty. [Reinstein, J.] August 20,

1999) ; State v. Yisrael, on the record, No.
99-20 176CF10A (Florida Cir. Ct., Broward Cty.
[Cohn, J.] August 8, 2000); *842 cf. Common-
wealth v. Gaynor, unpublished (Mass. Sup.Ct.,
Hampden Cty. [Ford, J.) April 27, 2000) (assumes
acceptability of STR/DNA profiling, using the
AmpF/STR Profiler Plus and Cofiler PCR kits).
General scientific acceptance, not universal accept-
ance, is required. ‘The particular procedure need
not be ‘unanimously indorsed* by the scientific
community but must be ‘generally acceptable as re-
liable.' ” People v. Wesley, 83 N.Y.2d 417, 423,
611 N.Y.S.2d 97, 633 N.E.2d 451 (1994), quoting
People v. Middleton, 54 N.Y.2d 42, 49, 444
N.Y.S.2d 581, 429 N,E.2d 100 (1981). Cf, People
v. Schreck, **182 unpublished, Case No.
98CR2475 (Col. Dist. Ct., Boulder Cty. [Hale, J.]

2000) and People v. Pfenning, supra, (relied upon
by the defendant). The People also provided this
court with ample abstracts of symposium and con-
ference presentations and articles supporting the
validation of both AmpF/STR Profiler Plus and
Cofiler PCR kits and STR/DNA profiling in gener-
al.

This court finds, while not alone dispositive,
STR is in widespread use in forensic laboratories
because low amounts of DNA even in degraded
form can be successfully typed. Further, at least
three appellate courts have held predecessor PCR/
STR DNA profiling kits are reliable and generally
aceepted by the scientific community. People v . Al-
len, 72 Cal.App.4th 1093, 85 CaI.Rptr.2d 655
(1999); State v, Jackson, 255 Neb. 68, 582 N.W.2d

317 (Neb. Sup.Ct. 1998); Commonwealth v. Rosier,
425 Mass. 807, 685 N.E.2d 739 (Sup. Judicial Ct.
1997); Sec also, People v. Moevao, unpublished
(Cal. Sup.Ct., San Francisco, City & Cty. [Warren,
J.J July 24, 2000) (found the forerunner AmpF/STR
Blue and AmpF/STR Green kit admissible; after a
25 day hearing with 8 witnesses and 60 exhibits
amassing 2300 pages of transcripts). Indeed while
ultimately finding the Profiler Plus system unreli-
able, even the Vermont District Court in People v.
Pfenning, supra., acknowledged “the use of fluores-
cent primers and the generalized use of STRs has
been in place For some time, as early as 1990 ....the
basic technologies incorporated in Profiler Plus
have been utilized as independent entities for
longer periods of time are generally recognized as
valid scientific techniques.” Id. at 49, 685 N.R2d
739.

Note in People v. Jose Santiago, another capit-
al case recently tried in this County, expert testi-
mony concerning the STR/DNA profiling using the
AmpF/STR Profiler Plus and Cofiler PCR kits was
admitted. See People v. Santiago, (99/0210) (Mon.
Cty. Ct. [Bristol, J.] 2000). In Santiago, the Capital
Defender’s Office did not seek a Fiye hearing or
contest the reliability or general acceptance in the
scientific community of the AmpF/STR Profiler
Plus and Cofiler PCR kits.

[3] *843 Novel scientific evidence may be ad-
mitted without any hearing at all by the trial court.
People u. Wesley, supra, at 426, 611 N.Y.S,2d 97,
633 N.E.2d 451, citing Matter of Lahey v. Kelly, 71
N.Y.2d 135, 524 N.Y.S.2d 30, 518 N.E.2d 924
(1987); People v. Middleton, 54 N.Y.2d 42, 49, 444
N.Y.S.2d 581, 429 N.E.2d 100 (1981). As the New
York Court of Appeals has found “[t]he modem
trend in the law of evidence has been away from
imposing a special test on scientific evidence and
toward using the ‘traditional standards of relevaney
and the need for expertise.’ ” People v. Wesley,
supra, citing 1 McCormick, Evidence 203, at
873-74 (4th ed. 1992).

To the extent the court in People v, Schroedel,

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1342

Page 5

21197

187 Misc.2d 838, 72.5 N.Y.S.2d 178, 200 LNY. Slip Op.
(Cite as: 187 Misc.2d 838, 725 N.Y.SJd 178)

unpublished (Sullivan Cty. Ct. [LaBuda, J.] March
21, 2001) reached an opposite conclusion in a capit-
al case this court disagrees. The Schroedel court
granted defendant's request for a Frye hearing, but
shifted the burden to defendant of proving by a pre-
ponderance of the evidence suppression based on
the lack of “reliability and generalf ] acceptability
in the scientific community of the use of ampF/STR
[Gjrccn typing kit and ampF/STR Blue typing kit in
DNA profiling methodology used by the New York
State laboratory.” Id. at 5. The burden of proof in a
standard Frye hearing is on the People. The ampF/
STR Green typing kit and ampF/STR Blue typing
kit are the direct forerunners to the kits used in this
case. This court finds that to hold such a truncated
Frye hearing would serve no legitimate purpose in
this case.

**183 [4] Defendant also contests the protocols
1 J pm* r

and procedures of both the MCPSL and Cell-

mark. Defendant asserts that the MCPSL mis-
handled certain samples resulting in potential con-
tamination, and failed to maintain proper docu-
mentation on site in violation of the industry’s min-
imal quality assurance standards. Defendant also
questions the accreditation status of the MCPSL.
Defendant further claims the technicians employed
by Cellmavk failed to separate samples under ana-
lysis, mislabeled samples, and Ccllmark did not
properly review the technician's work.

FN* Defendant also does not dispute the
general acceptance by the scientific com-
munity of Amplitype PM (Polymarker) and
DQA1 analysis use by the Monroe County
Publie Safety Laboratory. People v,
Hamilton, 255 A.D.2d 693, 694, 681
N.Y.S.2d 1 17 (3rd Dept.)(see reeord ou ap-
peal), Iv. denied 92 N,Y.2d 1032, 684
N.Y.S.2d 497, 707 N.E.2d 452 (1998);
People v. Morales, 227 A.D.2d 648, 643
N.Y.S.2d 217 (2nd Dept.), Iv. denied 89
N.Y.2d 926, 654 N.Y.S.2d 729, 677
NJB.2d 301 (1996).

[5] These are questions of foundation or weight

that may be dealt with at trial, To be admissible at
trial, scientific evidence must be reliable and gener-
ally accepted by the scientific community by a prior
court finding and have a proper foundation *844
laid at trial. People v, Wesley, supra, at 422, 611
N.Y.S.2d 97, 633 N.E.2d 451 “Foundation concerns
itself with the adequacy of the speeific procedures
used to generate the particular evidenee to be ad-
mitted.” Id. Defendant shall be permitted to bring
the perceived weaknesses in the People’s methodo-
logy to the jury's attention on eross-exainination of
the People's expert witnesses. See People v. Vega,
225 A.D.2d 890, 639 N.Y.S.2d 51 ! (3rd Dept. 1996)

Defendant's motion entitled DEF-69 is denied
in its entirety.

N.Y.Sup.,2001.

People v. Owens

187 Misc.2d 838, 725 N.Y.S.2d 178, 2001 N.Y.
Slip Op. 21197

END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig, US Gov. Works.

1343

Wo'stiaw,

Page 1

Not Reported in N.Y.S.2d, 2001 WL 856077 (N.Y.Sup.), 2001 N.Y. Slip Op. 40004(U)

(Cite as: 2001 WL 856077 (N.Y.Sup.))

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS, NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK,
v.

JOHN OWENS, Defendant.

Ind. # 547/99 Consolidated with #414/99
DATED: April 20, 200 1 , Rochester, New Y ork

HOWARD R. RELIN, ESQ. Monroe County Dis-
trict Attorney MICHAEL C. GREEN, ESQ. Special
Assistant District Attorney DAVID A. FOSTER,
ESQ. Assistant District Attorney

KEVIN M. DOYLE, ESQ. Capital Defender (Willi-
am T. Easton, Esq., First Deputy Capita! Defender,
Patricia Warth, Esq., Deputy Capital Defender)
PETER J. PULLANO, ESQ. FOR DEFENDANT

EGAN, J.:

*1 This is a death penalty case. On April 19,
2001 Defendant was convicted of two eounts of
First Degree Murder, and two eounts of Rape, First
Degree arising out of three separate incidents that
occurred within a two month period in 1999. De-
fendant by Notiec of Motion filed January 8, 2001
sought an order requiring an audio tape recording
of all proceedings in this case. The People opposed
Defendant's motion. This Court denied Defendant's
motion on the record on January 22, 2001.

This Court finds no authority in New York, and
Defendant cites none, requiring the audio recording
of a criminal proceeding in addition to the creation
of a stenographic record. Cf. Judiciary Law §§295
& 297 (2001); see also, 22 New York Codes, Rules
and Regulations (NYCRR) §218(1 )(b) (2001)& 22

NYCRR §§510.1 1(b), 510.11(b) (2001); People v.
Harrison, 85 NY2d 794 (1995) (regarding the ste-
nographic recording of criminal trials). Relying on
the oft-cited notion of heightened due process, De-
fendant avers that the additional precaution of an
audio recording is required in a capital case. The
Courts of New York uniformly have rejected this
argument. See e.g., People v. Bonton, unpublished
p. 9 (Sup. Ct., Kings Cty. [Lott, J.] October 18,
1999); cf. People v. Arroyo, unpublished p. 2
(Schoharie Cty. Ct. [Barlett, J.] June 1998). This
Court is also not convinced that the contemporan-
eous audio recording of such proceedings would
remedy the potential problem created when two or
more people speak at once on the record, as De-
fendant suggests.

For the forgoing reasons, Defendant's motion
entitled DEF-67 was denied in its entirety on Janu-
ary 22, 2001.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v. Owens

Not Reported in N.Y,S.2d, 2001 WL 856077
(N.Y.Sup.), 2001 N.Y. Slip Op. 40004(U)

END OF DOCUMENT

©2011 Thomson Reuters, No Claim to Orig. US Gov. Works.

1344

Westiaw

Page 1

Not Repoited in N.Y.S.2d, 2001 WL 1035089 (N.Y.Sup.), 2001 N.Y. Slip Op. 401 21 (U)

(Cite as: 2001 WL 1035089 (N.Y.Sup.))

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK,
v.

JOHN OWENS, Defendant.

lnd. ft 547/99 Consolidated with #414/99
DATED: April 12, 2001, Rochester, New York

HOWARD R. REL1N, ESQ. Monroe County Dis-
trict Attorney MICHAEL C. GREEN, ESQ. Special
Assistant District Attorney DAVID A. FOSTER,
ESQ. Assistant District Attorney FOR THE
PEOPLE

KEVIN M. DOYLE, ESQ. Capital Defender (Willi-
am T. Easton, Esq., First Deputy Capital Defender,
Patricia Warth, Esq., Deputy Capital Defender)
PETER J. PUL1ANO, ESQ. FOR DEFENDANT

EGAN, J.:

*1 This is a death penalty case. Defendant is
being tried for crimes against three victims arising
out of separate incidents that occurred within a two
month period in 1999. The presentation of evidence
at trial conuncnecd on Mareh 21, 2001.

Counts One and Three of Indictment No.
547/99 arise out of the murder of Rosemarie Con-
stantino, who was killed in the course of a rape in
the Maplewood area of the City of Rochester on
April 28-29, 1999, and charge Defendant with
Murder, First Degree (Penal Law §125.27 (a)(vii)
and (b)), and Murder, Second Degree (Penal Law
§125.25 (1)), respectively. Counts Two and Four of
the same Indictment and Count One of Indictment

No. 414/99 (previously consolidated by Order of
this Court dated November 22, 1999) arise out of
the alleged murder and rape of Sherry Tuthill at
200 Merlin StTeet, City of Rochester on May 30 -
June 1, 1999. See People v. Owens, DA-1, unpub-
lished (Mon. Cty. CL [Egan, J.JNovember 22,
1999). Defendant is eharged with Murder, First
Degree (Penal Law §125.27 (a)(vii) and (b)).
Murder, Seeond Degree (Penal Law §125.25 (!))
and Reekless or Depraved Indifference Murder,
Seeond Degree (Penal Law §125.25 (2)) relating to
this ineident. Counts Five and Six both charge De-
fendant with Rape, First Degree (Penal Law
§130.35 (1)), and arise out of the alleged rapes of
"R. L.” on June 6, 1999.

At the Court's request the parties' submitted
proposed jury eharges for the guilt phase of trial.
On April 10, 2001 the Court provided the parties
with a written copy of the charges that it plans on
giving to jurors. To the extent Defendant's motion
entitled DEF-78 1 ^*, and the People's submission,
seek relief due to the variation between this Court's
instructions as modified at the charge conference on
the record and their respective proposals, these re-
quests are denied.

FNI. This Court also reviewed Defendant's
letter dated April 11, 2001 concerning his
request for charges on lesser included of-
fenses, and the People's responsive letter
of the same date.

Defendant's specific requests to have the jury
charged as to the lesser included offenses concern-
ing the counts relating to the deaths of Rosemary
Constantino and Sherry Tuthill are granted in part.
As lesser included offenses to Murder, Second De-
gree, Penal Law §125.25 (1) of Rosemary Con-
stantino, the Court will charged the jury concerning
Manslaughter in the First Degree, Penal Law
§125.20(1) and Manslaughter in the Second De-
gree, Penal Law §125.15(1). See People v. Ford, 66
NY2d 428, 439-40 (1985).

©2011 Thomson Reuters. No Claim to Grig. US Gov. Works.

1345

Page 2

Not Repotted in N.Y.S,2ih 2001 WL 1035089 (N.Y.Sup.), 2001 N.Y. Slip Op. 4012i(U)

(Cite as: 2001 WL 1035089 (N.Y.Sup.))

*2 This Court denies Defendant’s request for a
charge on Murder in the Second Degree (felony
murder), Penal Law §125.25(3), Murder in the
Second Degree (depraved indifference murder).
Penal Law §125.25(2), and Rape in the First De-
gree, Penal Law §130.35(1) as lesser included of-
fenses to the First Degree Murder charge relating
to the death of Rosemary Constantino. See Criminal
Procedure Law (“CPL M ) §1.20 (37) (2001); People
v. Glover, 57 NY2d 61, 63-64 (1982); People v.
Bryant, 85 AD2d 575, 576 (1st Dept. 1981) citing
People v. Bcrzups, 49 NY2d 417, 427 (J980); see
also, People v. Stokes, 88 NY2d 618 (1996).

As lesser ineluded offenses to Depraved Indif-
ference Murder, Seeond Degree, Penal Law
§125.25 (2), of Sherry Tuthill, the Court will
charge the jury concerning Manslaughter in the
First Degree, Penal Law §125.20(1), and Man-
slaughter in the Second Degree, Penal Law §125.15
(1). is Court denies Defendant's request for a
eharge on Rape in the First Degree, Penal Law
§130.35(1) as a lesser ineluded offense to the First
Degree Murder eharge relating to the death of
Sherry Tuthill.

Further, die People by letter dated August 30,
2000 and in their' Objections to Defendant's Pro-
posed Jury Instructions (Def-78) seek to have this
Court revisit its earlier decision on severance. This
Court by its decision dated August 17, 20(H)
severed for trial one eount alleging Defendant raped
a fourth and different victim M S.C." People v.
Owens, DEF-32, unpublished (Sup. Ct Mon.
Cty.[Egan, J.] August 17, 2000).

The People argue the Court's denial of Defend-
ant's request to sever the remaining sets of charges
related to the other three victims under Criminal
Procedure Law (CPL) §200.20(2)(e), in absence of
an ex-parte in camera submission by Defendant was
in error., The People maintain that Defendant's bare
request in his supplemental papers entitled Supple-
ment and Reply to DEF-32 filed on July 17, 2001 to
make such an ex-parte submission coneeming his
need to clarity the inconsistencies in his statement

to police concerning the murder of Sherry Tuthill
and to refrain from testifying concerning the al-
leged murder of Rosemary Constantino triggered
his absolute right to a hearing under CPL §200.20
(3)(b)(ii).

The Appellate Division for the Fourth Depart-
ment specifically rejected this narrow interpretation
of CPL §200.20(3). People v. Burrows, _____ AD2d

, , 2001 NY App Div Lexis 2779 (March 21,

2001) (appeal from judgment of Monroe County
Court Judge David D. Egan). This Court having
found that Defendant failed to make the threshold,
"convincing showing that he had important testi-
mony to give concerning one set of charges" or to
"refrain coneeming (the other] set of eharges, de-
clines to amend its earlier decision to ineludc a ref-
erence to CPL §200.20(2)(b), as the People request.

*3 The People also urge that this Court erred in
not addressing their alternate claim that each set of
charges arc properly joinable under CPL §200.20
(2)(b) because the proof of each "would be material
and admissible as evidence in chief upon a trial" of
the others since the erimes involved "sufficiently
unique modus operandi that proof of one is relevant
to issues [inter alia] of identity and intent." See Id.
This Court disagrees. Despite the People's objec-
tions, this Court will charge the jury with a modi-
fied version of Criminal Jury Instructions (CJT)
5.39 on Joinder of Offenses, as provided to the
parties.

The People's request to amend this Court's
earlier decision entitled DEF-32 is denied. Both the
People’s and Defendant's requests regarding pro-
posed jury instructions (DEF-78) arc denied in part
and granted in part as diseussed above.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v. Owens

Not Reported in N.Y.S.2d, 2001 WL 1035089
(N.Y.Sup.), 2001 N.Y. Slip Op. 4012 1(U)

END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1346

West law.

Page 1

Not Reported in N.Y.S.2d, 200! WL 856030 (N.Y.Sup.), 2001 N.Y. Slip Op. 40002(U)

(Cite as; 2001 WL 856030 (N.Y.Sup.))

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK,
v.

JOHN OWENS, Defendant.

Ind. # 547/99 Consolidated with #414/99
DATED: April 24, 2001, Roehester, New York

HOWARD R. RELJN, ESQ. Monroe County Dis-
trict Attorney MICHAEL C. GREEN, ESQ. Special
Assistant District Attorney DAVID A. FOSTER,
ESQ. Assistant District Attorney

KEVIN M. DOYLE, ESQ. Capital Defender (Willi-
am T. Easton, Esq., First Deputy Capital Defender,
Patricia Warth, Esq., Deputy Capital Defender)
PETER J. PULLANO, ESQ. FOR DEFENDANT

EGAN, J.:

*1 This is a death penalty ease. On April 19,
2001 Defendant was eonvicted of two eounts of
First Degree Murder, and two counts of Rape, First
Degree arising out of three separate incidents that
occurred within a two month period in 1999. De-
fendant by Notice of Motion filed April 20, 2001
seeks an order prohibiting the mid-trial excusal of a
seated juror without Defendant's written consent.
The People have not opposed Defendant's motion.

Criminal Procedure Law (“CPL”) §400.27(2)
provides in part that:

Before proceeding with the jury that found the
defendant guilty, the court shall determine whether
any juror has a state of mind that is likely to pre-
clude the juror from rendering an impartial decision

based upon the evidence adduced during the pro-
ceeding. ... In the event the court determines that a
juror has such a state of mind, the court shall dis-
charge the juror and replace the juror with the al-
ternate juror whose name was first drawn and
called.

Defendant argues that this Court must obtain
his written consent if it excuses a seated juror be-
fore the jury commences deliberations on senten-
cing for either the reason set forth in CPL §400.27
(2), or for any other reason. Defendant relies on
CPL §270.35 that provides in part:

If an alternate juror or jurors are available for
serviee, the court must order that the discharged
juror be replaced by the alternate juror whose name
was first drawn and called, provided, however, that
if the trial jury has begun its deliberations, the de-
fendant must eonsent to such replacement. Such
consent must be in writing and must be signed by
the defendant in person in open eourt in the pres-
ence of the court.

This Court finds Defendant's reliance on CPL
§270.35 is misplaced. As Defendant points out the
recently enacted CPL §400.27 is silent on whether a
eoml must obtain a Defendant's eonsent before it
excuses a seated juror, and replaces him with an al-
ternate juror. CPL §400.27 entitled “Procedure for
Determining Sentence upon Conviction for the Of-
fense of Murder in the First Degree” specifically
relates to a sentencing hearing after a Defendant's
convietion for First Degree Murder, and thus by
definition addresses a post-deliberation proceeding.
This Court finds that CPL §400.27's silence on the
requirement of Defendant's eonsent marks a elear
departure by the legislature from the constraints of
CPL §270.35. This Court will not undermine the
New York legislature's decision not to require a
eourt to obtain a Defendant's consent before excus-
ing and replacing a seated juror after a jury has
fully deliberated and convicted a Defendant of First
Degree Murder. This Court notes that the require-

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1347

Page 2

Not Reported in N.Y.S.2d } 2001 WL 856030 (N.Y.Sup). 2001 N.Y. Slip Op. 40002(U)

(Cite as: 2001 WL 856030 (N.Y.Sup.))

ment of CPL §270.35 is also inapplicable since the
seated jurors have not yet begun deliberating on
Defendant's sentence.

For the foregoing reasons. Defendant's motion
entitled DEF-80 is denied in its entirety.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v. Owens

Not Reported in N.Y,S.2d, 2001 WL 856030
(N.Y.Sup.), 2001 N.Y. Slip Op. 40002(U)

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1348

We'stiaw,

Page 1

187 Mise.2d 944, 727 N.Y.S.2d 275, 2001 N.Y. Slip Op. 21230
(Cite as: 187 Misc.2d 944, 727 N.Y.S.2d 275)

Supreme Court, Monroe County, New York.
The PEOPLE of the State of New York, Plaintiff,
v.

Joint F. OWENS, Defendant.

April 27, 2001.

Defendant was convicted of two eounts of first
degree murder and two counts of first degree rape
arising out of three separate incidents. Prior to cap-
ital sentencing, defendant moved court to revisit
prior decision in which court held sentencing stat-
ute constitutional. The Supreme Court, Monroe
County, David D. Egan, J., held that defendant
failed to establish unconstitutionally or inapplicab-
ility of anticipatory deadlock jury instruction bey-
ond reasonable doubt.

Motion denied in part, and granted in part.

West Head notes

Sentencing and Punishment 350H <£^>1780(3)

350H Sentencing and Punishment
3 5 OH VI II The Death Penalty
350HVIII(G) Proceedings
350HVIII(G)3 Hearing

350Hkl780 Conduct of Hearing

350Hk 1780(3) k. Instructions. Most

Cited Cases

Defendant failed to prove beyond a reasonable
doubt that anticipatory deadlock jury instruction on
sentence defendant would receive if jury were un-
able to agree on sentence in eapital murder trial
was unconstitutional and inapplicable; instruction
correctly advised jury that non-unanimous verdict
was a final verdict, and did not tip scales in favor of
death. McKinney's CPL § 400.27, subd. 10.

**276*944 Kevin M. Doyle, Capital Defender
(William T. Easton and Patricia Warth of counsel),
and Peter J. Pullano, for defendant.

Howard R. Relin, District Attorney of Monroe
County (Miehael C. Green and David A. Foster of
eounsel), for plaintiff.

DAVID D. EGAN, J.

This is a death penalty ease. On April 19, 2001
Defendant was convicted of two counts of First De-
gree Murder, and two eounts of First Degree Rape
arising out of three separate incidents that occurred
within a two month period in 1999.

Criminal Procedure Law (CPL) § 400.27(10)
provides that, after rendering a guilty verdict but
before sentencing, the eourt shall instruct the jury
that they must reach a unanimous decision concern-
ing whether to impose a sentence of death or. life
imprisonment without the *945 possibility of pa-
role. CPL § 400.27(10) further requires the court to
instruct the jury that if they are unable to reach a
unanimous decision concerning sentencing, “the
court will sentence the defendant to a term of im-
prisonment with a minimum term of between
twenty and twenty-five years and a maximum term
of life.” CPL § 400.27(10). This Court previously
found that Defendant failed to prove beyond a reas-
onable doubt that CPL § 400.27(10) was unconsti-
tutional, and declined to refrain from instructing the
jury concerning the consequences of not reaching a
unanimous decision on sentencing. People v.
Owens, DEF-21 unpublished (Mon. Cty. Ct. [Egan,
J.) May 30, 2000). In the midst of the sentencing
proceeding, Defendant asks this Court to revisit its
earlier decision. See Id.

Defendant argues that tills anticipatory dead-
lock instruction may eocree jurors who favor a life
sentence without the possibility of parole to vote
for death, simply to avoid the more lenient sen-
tence. Defendant further contends that the
“deadlock instruction would inject intolerable arbit-
rariness and irrationality into sentencing in eapital
cases even if it proves just as likely to influence
death jurors as life-wi thou t-pa role jurors to ehange

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1349

Page 2

21230

187 Misc.2d 944, 727 N.Y.S.2d 275, 2001 N.Y. Slip Op.
(Cite as: 187 Misc.2(1 944, 727 N.Y.S.2d 275)

their votes” rendering CPL § 400.27(10) unconsti-
tutional.

The People oppose Defendant’s motion, but do
not object to this Court instructing the jury on the
potential maximum and minimum sentences De-
fendant could receive, based oil his actual convic-
tions, in the event the jury cannot reach a unanim-
ous agreement on sentencing.

This Court again finds Defendant has failed to
prove beyond a reasonable doubt that the deadlock
instruction of CPI. § 400.27(10) is unconstitutional.
As this Court noted in its prior decision:

The courts of New York have almost uniformly
rejected the notion that CPL § 400.27(10) is un-
constitutional. People v. Santiago, unpublished,
p. 3 (Mon. Cty. Ct. [Bristol, J.] (January 18,
2000); People v. Gordon, NYLJ, p. 32, col. 6
(October 29, 1998); People v. Van Dyne, unpub-
lished, p. 4 (Mon. Cty. Ct. [Marks, J.] (September
2, 1998); People v. Parker , unpublished, p. 38-41
(Erie Cty. Ct. [D’Amico, J.] (July 2, 1998);
People v. Shulman, NYLJ p. 35, col. 4 (January
30, 1998); People v. Mateo, 175 Misc.2d 192,
225, 664 N.Y.S.2d 981 (Mon. Cty.Ct. 1997).
While one court has found that CPL § 400.27(10)
is unconstitutional, and refused to instruct the
jury in *946 anticipation of a potential deadlock [
People v. Harris, 177 Misc.2d 160, 164, 677
N.Y.S.2d 659 (Sup.Ct. Kings Co. 1998) ], that
jury later inquired on its own about the con-
sequences of not reaching a unanimous verdict,
and ultimately, sentenced that defendant to death.

This Court agrees with the rationale of New Jer-
sey's highest court when it refused to invalidate a
similar anticipatory **277 deadlock instruction,
“to hide from the jury the full range of its senten-
cing options, thus permitting its decision to be
based on uninformed and possibly inaccurate
speculation, is to mock the goals of rationality
and consistency required by modem death pen-
alty jurisprudence.” State v. Ramseur, 106 N.J.
123, 309, 524 A.2d 188, (1987); see also. State v.

Brown, 138 N.J. 481, 651 A.2d 19 (1994)
(finding NJSA 2C: 1 l-3f constitutional); cf Jones
v. United States. 527 U.S. 373, 383, 119 S.Ct.
2090, 144 L.Ed.2d 370 (1999).

The anticipatory deadlock instruction correctly
advises the jury that a non-unanimous verdict is a
final verdict. See People v. Shulman, supra. Nor
does this Court find that the instruction tips the
scales in favor of death. Cf. People v. Harris,
supra. It is as likely that those jurors who favor
life without the possibility of parole will per-
suade death-prone jurors to change their vote to
avoid a non-unanimous verdict, and its associated
lenient sentence. Instead the deadlock instruction
actually benefits the Defendant by encouraging
all jurors to stand by their beliefs, since a non-
unanimous verdict is a final verdict, consistent
with their earlier vote for conviction.

People v. Owens, DEF-21 , supra.

This Court however will instruct the jury be-
fore deliberations on the range of sentencing op-
tions at its disposal based on Defendant's actual
convictions for both capital and non-capital of-
fenses should the jury ultimately reach a unanimous
sentencing determination.

Defendant's motion is denied in part and gran-
ted in part as discussed fully in this decision.

N.Y.Siip.,200L
People v. Owens

187 Misc.2d 944, 727 N.Y.S.2d 275, 2001 N.Y.
Slip Op. 21230

END OF DOCUMENT

© 20 1 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1350

Westiaw.

Page 1

Not Reported in N,Y,S.2d, 2001 WL 880785 (N.Y.Sup), 2001 N.Y. Slip Op. 4004 1(U)

(Cite as: 2001 WL 880785 (N.Y.Sup.))

NOT APPROVED BY REPORTER OF DE-
CISIONS FOR REPORTING IN STATE RE-
PORTS. NOT REPORTED IN N.Y.S.2d.

STATE OF NEW YORK SUPREME COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK
v.

JOHN F. OWENS, Defendant.

lnd, #547/99 Consolidated with lnd. #414/99
DATED: May 8, 2001, Rochester, New York

HOWARD R. RELIN, ESQ. Monroe County Dis-
trict Attorney MICHAEL C. GREEN, ESQ. Assist-
ant District Attorney DAVID A. FOSTER, ESQ.
Assistant District Attorney FOR THE PEOPLE

KEVIN M. DOYLE, ESQ. Capital Defender (Willi-
am T. Easton, Esq., First Deputy Capital Defender,
Patricia Warth, Esq., Deputy Capital Defender)
PETER J. PULLANO, ESQ.

EGAN, J.:

*1 This is a death penalty ease. At the conclu-
sion of the presentation of evidence in the senten-
cing phase of trial. Defendant by Notiee of Motion
filed on April 27, 2001 renewed his challenge to
Criminal Procedure Law (“CPL”) §400,27(1 1). De-
fendant asked this Court to revisit its decision en-
titled DEF-28, entered on August 30, 2000 where
this Court concluded that the second-step of the
sentencing determination was not unconstitution-
ally vague or standardless. People v. Owens, DEF-
28, unpublished, pp.2-3 (Sup. Ct. Mon. Cty. [Egan,
J.] August 30, 2000). The People made no submis-
sion in response to Defendant’s renewed motion.
This Court denied Defendant's motion on the rceord
finding nothing in his additional submission to alter
its earlier deeision.

Defendant argued that since his first motion
“developments have occurred that create an unac-
ceptable risk that impermissible factors will infect
the sentencing proceeding" including (1) this
Court's denial of Defendant’s severance motion; (2)
the alleged admission of prejudicial and inflammat-
ory evidence of nonstatutory aggravation during the
guilt phase of trial; (3) alleged prosecutorial mis-
conduct during summation; and (4) the People’s
commission and use of community attitudes survey
to select a jury predisposed to consider race and
other illegitimate factors at sentencing. This Court's
earlier decisions, both written and on the record,
denied relief to Defendant on each of these specific
grounds. See People v. Owens, DEF-32, unpub-
lished, pp.2-3 (Sup. Ct. Mon. Cly.[Egan, J.] August
16, 2000); People v. Owens, DEF-78 & 32 2nd De-
cision, unpublished (Sup. Ct. Mon. Cly.fEgan, J.]
April 12, 2001); People v. Owens, DEF-47, unpub-
lished (Sup. Ct. Mon. Cty.fEgan, J.J December 1,

2000) ; People v. Owens, DEF-75, AD2d ,

published (Sup. Ct. Mon. Cty.[Egan, J.] March 23,

2001) ; People v. Owens, DEF-73, AD2d

2001 NY Misc. Lexis 86 (Sup. Ct. Mon. Cty 2001).

As this noted in its earlier decision addressing
the constitutionality ofCPL §400.27 (1 l)(a):

CPL §400.27 (11) (a) provides in part: 'The
jury may not direct imposition of a sentenee of
death unless it unanimously finds beyond a reason-
able doubt that the aggravating factor or factors
substantially outweigh the mitigating factor or
faetors established, if any, and unanimously de-
termines that the penalty of death should be im-
posed." Id. Defendant specifically claims that when
the jury undertakes the second tier determination, it
is not guided by objective standards, and thus is al-
lowed the “unbridled discretion" denounced in
Penry v. Lynaugh, 492 US 302, 326 (1989).

To pass constitutional muster, the death penalty
may “not be imposed under sentencing procedures
that create[ ] a substantial risk that it [will] be in-

© 201 i Thomson Reuters. No Claim to Orig. US Gov. Works.

1351

Page 2

Not Reported in N.Y.S.2d, 2001 WL 880785 fN.Y.Snp.), 2001 N,Y. Slip Op. 4004 1(U)

(Cite as; 2001 WL 880785 (N.Y.Sup,))

flictcd in an arbitrary and capricious manner.”
Gregg v. Georgia, 428 US 153, 188 (1976)
(reaffirming the holding in Furman v Georgia, 408
US 238 (1972),) Thus, a “State must establish ra-
tional criteria that narrow the decisionmaker’s judg-
ment as to whether the circumstances of a particular
defendant's case meet the threshold.” McClcskey v.
Kemp, 48 i US 279 , 305 ( 1 987).

The capital sentencing scheme meets the stand-
ards of the New York and United States Constitu-
tions. Accord People v. McIntosh, 178 Misc. 2d
433 (Dutchess Cty. Ct. 1998); People v. Harris, 177
Misc. 2d 368 (Kings Cty. Ct. 1998); People v,
Mateo, 175 Misc 2d 192, 226 (Mon. Cty. Ct. 1997).
Penal Law §125.27(1) “ 'genuinely narrowfs] the
elass of persons eligible for the death penalty* ” by
delineating twelve distinct aggravating factors that
raise the gravity of their erimes above other
murders. Sec Lowenfield v. Phelps, 484 US 23 i,
244 (1988) FNI . CPI. §400.27 (hen employs a bal-
ancing test, justifying the imposition of a death sen-
tence in only those cases where those aggravating
factors proved at trial substantially outweigh all
mitigating evidence. See CPL §§400.27(3), (6), and
(11). CPL §400.27(3) provides for an individual-
ized sentencing determination by allowing the De-
fendant to challenge any aggravating faetor by
presenting mitigating evidence “concerning the
crime, the defendant's state of mind or condition at
the time of the crime. . even in hearsay form. See
CPL §400.27(9) (f). An individual juror may con-
sider any mitigator, if it was proved by Defendant
to the satisfaction of such juror by a preponderance
of the evidence. Unanimity is not required. CPL
§400.27 (11) (a).

FN1. As the United States Supreme Court
noted there is \ . .no reason why this nar-
rowing function may not be performed by
jury findings at either the sentencing phase
of the trial or the guilt phase.* Lowenfield,
supra, at 244-45.

The Supreme CouTt has held that such a weigh-
ing process alone is sufficient for the imposition of

a death sentence. See Blystone v Pennsylvania, 494
US 299 (1990); Boydc v California, 494 US 370
(1990). Instead CPL §400.27(1 l)(a) provides an ad-
ditional safeguard for a defendant facing the death
penalty. The weighing process is a prerequisite to
the sentencing jury’s “unanimous determination]
that the penalty of death should be imposed.” Id.
CPL §400.27(1 l)(a) thus empowers the jury to ex-
ercise mercy and decline to impose the death pen-
alty even if it has found, after weighing both ag-
gravating and mitigating factors, that death is other-
wise warranted. Despite Defendant's arguments
otherwise, no further guidelines are constitutionally
required at this stage of the jury's deliberations. See
Tuilaepa v. California, 512 US 967, 979-80 (1994)
(“[a] eapital sentenecr need not be instructed how
to weigh any particular faet in the eapital senten-
cing decision.”)

Defendant's argument that CPL §400.27(11)
undermines appellate review is also without merit.
Subparagraph (b) of that section specifically
provides, “[i]f the jury directs imposition of either a
sentence of death or life imprisonment without pa-
role, it shall specify on the record those mitigating
and aggravating faetors considered and those mitig-
ating factors established by the defendant, if any.”
CPL §400.27(1 l)(b).

Defendant also argues that sinee CPL §400.27
(1 l)(a) provides for an individual juror’s considera-
tion of mitigating factors it is unconstitutionally
permissive. The statute states that “[a]ny member
or members of the jury who find a mitigating factor
to have been proven by the defendant by a prepon-
derance of the evidence may consider such faetor
established regardless of the number of jurors who
concur that the faetor has been established.” Id,
(Emphasis added.) Defendant eiaims that the use of
the permissive word “may” instmets a juror not to
consider a mitigating factor even if he believes it
was established. This Court finds that the plain
meaning of the statute actually bodes in favor of the
Defendant, by eneouraging individual jurors to
stand by their personal eonvietions, “regardless of

O 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1352

Page 3

Not Reported in N.Y.S.2d, 2001 WL 880785 (N.Y.Sup.), 2001 N,Y. Slip Op. 40041 (U)

{Cite as: 2001 WL 880785 (N.Y.Sup.))

the number of jurors who concur” with them. See
Id.

People v. Owens, DEF-28, supra, at 1-3.

Defendant's renewed motion entitled DEF-89 is
denied in its entirety.

This shall constitute the Opinion, Decision and
Order of this Court.

ZYNY

People v, Owens

Not Reported in N.Y.S.2d» 2001 WL 880785
(N.Y.Sup.), 2001 N.Y. Slip Op. 4004 1(U)

END OF DOCUMENT

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1353

We'stlaw.

Page !

188 Misc.2d 392, 729N.Y.S,2d 285, 2001 N.Y. Slip Op. 21298
(Cite as: 188 Misc.2d 392, 729 N.Y,S.2d 285)

Supreme Court, Monroe County, New York.

The PEOPLE of the State of New York, Plaintiff,
v.

John F. OWENS, Defendant.

May 30,2001.

Following conviction for first degree murder
and first degree rape, defendant moved for permis-
sion to give unsworn allocution after summations in
penalty phase. The Supreme Court, Monroe
County, David D. Egan, J., held that there was no
right to unsworn allocution during penalty phase of
capital case.

Motion denied.

West Hcadnotes

11] Sentencing and Punishment 350II €^359

350H Sentencing and Punishment

350H1I Sentencing Proceedings in General
350H 11(G) Hearing
350Hk355 Allocution

350Hk359 k. Requisites and Suffi-
ciency. Most Cited Cases

Defendant, charged with capital crime, did not
have right to unsworn allocution following summa-
tions, in sentencing portion of trial. McKinney's
CPL § 400.27.

J2] Sentencing and Punishment 350H C=>
1780(2)

350H Sentencing and Punishment
350HV1II The Death Penalty
350HVI1I(G) Proceedings
350HVIII(G)3 Hearing

350Hkl780 Conduct of Hearing

350Hk!780(2) k. Arguments and
Conduct of Counsel. Most Cited Cases

Counsel for defendant in capital case could in-

clude, in summation during penalty phase of trial,
statements that defendant wished to make to jury
during prohibited allocution, McKinney's CPL §
400.27.

**285*392 Kevin M. Doyle, Capital Defender
(William T. Easton and Patrieia Warth of counsel),
and Peter J. Pullano for Defendant.

Howard R. Relin, District Attorney of Monroe
County (Michael C. Green and David A. Foster of
counsel), for plaintiff.

DAVID D. EGAN, J.

On April 19, 2001 a jury convicted Defendant,
John F. Owens, of two counts of First Degree
Murder pursuant to Penal Law § 125.27(l)(a)(vii)
relating to the death of two separate victims, and
two couuts of First Degree Rape pursuant to Penal
Law § 130.35 relating to a third victim. Just before
the presentation of evidence in the sentencing phase
of trial, Defendant by Notice of Motion filed on
April 23, 2001 sought permission *393 to give an
unsworn allocution following summations. The
People opposed Defendant's motion.

[I][2J This Court finds that Defendant has no
statutory nor constitutional right to allocute before
a sentencing jury in a capital case. See McCauthu v.
California, 402 U.S. 183, 91 S.Ct. 1454, 28
L.Ed.2d 711 (1971). While Defendant correctly

points out that Criminal Procedure Law (“CPL”) §
FN1

380.50(1) allows a defendant to allocute be-
fore a sentencing court in a non-capital case, sen-
tencing in a death penalty case is directed not by a
judge but a by a jury. Indeed CPL § 400.27, which
embodies New York's intricate death penalty sen-
tencing scheme, does not provide for a Defendant's
unsworn allocution. CPL § 400.27 satisfies the con-
stitutional mandate “of individualized ... sentencing
in a capital case by providing for an expansive
presentation of any mitigating evidence to **286
the sentencing jury.” People v. Harris, unpublished,

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1354

Page 2

188 Misc.2d 392, 729 N.Y.S:2d 285, 2001 N.Y. Slip Op. 21298
(Cite as: 188 Mbe.2d 392, 729 N.Y.S.2d 285)

p. 3 (Sup.CL, Kings Cty. [Feldman, J.] 1998). For
these reasons, this Court denied Defendant's request
in its entirety on the reeord on April 25, 2001, and
thus specifically rejeeted the reasoning of the courts
in the eapital cases of People v. Shulman, unpub-
lished, p. 2 (Suffolk Cty. Ct. [Pitts, J.] 1999) and
People v. Harris, supra, at 3-4. This Court finds
however, that nothing would limit defense counsel
from reeiting Defendant's words in its elosing state-
ments.

FN1. Criminal Procedure Law § 380.50
provides in relevant part:

At the time of pronouncing sentence, the
court must accord the prosecutor an op-
portunity to make a statement with re-
speet to any matter relevant to the ques-
tion of sentence. The court must then ac-
cord counsel for the defendant an oppor-
tunity to speak on behalf of the defend-
ant. The defendant also has the right to
make a statement personally in his or her
own behalf, and before pronouncing sen-
tence the eourt must ask the defendant
whether he or she wishes to make such a
statement.

Defendant's renewed motion entitled DEF-86 is

denied in its entirety.

N.Y.Sup.,2001.

People v. Owens

188 Mise.2d 392, 729 N.Y.S.2d 285, 2001 N.Y.

Slip Op. 21298 .

END OF DOCUMENT

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1355

Westi'aw,

Page l

51 A.D.3d 1369,856 N.Y.S.2d 793, 2008 N.Y. Slip Op. 04158
(Cite as: 51 A.D3d 1369, 856 N.Y.S.2d 793)

Supreme Court, Appellate Division, Fourth Depart-
ment, New York.

The PEOPLE of the State of New York, Respond-
ent,
v.

John OWENS, Defend ant- Appellant.

May 2, 2008.

Background: Following jury trial, defendant was
convicted m the Supreme Court, Monroe County,
David D. Egan, J., of murder in the first degree
and rape in the first degree. Defendant appealed.

Holdings; The Supreme Court, Appellate Division,
held that;

(1) defendant was not denied his right to a fair trial
before an unbiased fact finder;

(2) rape counts were properly joined with murder
counts;

(3) rape victim's testimony regarding defendant's
statements was properly admitted;

(4) testimony from witness and police officer in vi-
olation of trial court ruling was harmless error;

(5) instructions on the elements of intentional
felony murder fairly instructed the jury on the cor-
rect principles oflaw; and

(6) statute regarding intentional felony murder in
the first degree was not unconstitutionally underin-
chtsive.

Affirmed.

West Headnoles
[!] Jury 230 €==>131(6)

230 Jury

230V Competency of Jurors, Challenges, and
Objections

230k 124 Challenges for Cause
230kl31 Examination of Juror

230kl31(6) k. Bias and Prejudice.

Most Cited Cases

Defendant was not denied his right to a fair tri-
al before an unbiased fact finder; there was no in-
dication that any jurors were racially biased, the tri-
al court allowed unlimited voir dire on the issue of
racial bias, and defendant employed his own jury
consultant.

[2} Criminal Law 110 <£=‘620(1)

110 Criminal Law
110XX Trial

1 10XX(A) Preliminary Proceedings

1 10k620 Joint or Separate Trial of Separ-
ate Charges

1 10k620(l) k. In General. Most Cited

Cases

Rape counts were properly joined with murder
counts; rape in the first degree was the underlying
felony for each count of felony murder, and the
State had to establish defendant’s rape of the felony
murder victims.

[3] Criminal Law 110 £=>364(4)

1 10 Criminal Law
1 1 OX VII Evidence

llOXVJI(E) Res Gestae

1 10k362 Res Gestae; Excited Utterances
1 1 0k364 Acts and Statements of Ac-
cused

1 10k364(3) After Commission of

Crime

I10k364(4) k. Incriminating
Conduct and Statements After Commission of Of-
fense. Most Cited Cases

Criminal Law 110 £=>406(6)

110 Criminal Law
11 OX VII Evidence

HOXVU(L) Admissions

1 1 0k405 Admissions by Accused
1 10k406 In General

1 10k406(6) k. Admissions as to

© 20 1 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1356

Page 2

04358

51 A.D.3d 1369, 856N.Y.S.2d 793, 2008 N.Y, Slip Op,
(Cite as; 51 A.D.3d 1369, 856 N.Y.S.2d 793)

Commission of or Participation in Commission of
Crime. Most Cited Cases

Rape victim's testimony that during the course
of the rape defendant stated, “I did this before.
Sooner or later I'm going to get caught. ] might as
well face iny consequences,” was properly admitted
as part of the res gestae of the rape counts, and it
constituted an admission with respect to those
counts.

[4] Criminal Law 110 <fca396(l)

110 Criminal Law
110XV11 Evidence

1 10XVII(I) Competency in General

1 1 0k396 Evidence Admissible by Reason
of Admission of Similar Evidence of Adverse Party
110k396(l) k. In General. Most Cited

Cases

Witnesses 410 €=>288(2)

410 Witnesses

4101II Examination

410IH(C) Re-Examination

4! 0k285 Redirect Examination

410k288 New Matter on Cross-

Examination

410k288(2) k. Particular Subjects
of Inquiry. Most Cited Cases

By suggesting during defendant's eross-
examination of identifying witness that the witness
had identified defendant in order to collect a 55,000
reward, defendant opened the door to questioning
of that witness and a poliee officer that the witness
identified defendant six days before he inquired
about the reward.

[5| Criminal Law 110 €=>1170.5(1)

110 Criminal Law
1 10XXIV Review

1 10XX1V(Q) Harmless and Reversible Error
1 lOki 170.5 Witnesses

HOkl 170.5(1) k. In General. Most

Cited Cases

Although the State violated a ruling of the trial
eourt by eliciting testimony from the witness and
the poliee officer that the witness had identified de-
fendant in a photographic array, the violation of
that ruling was harmless error.

{6j Homicide 203 €=>1409

203 Homieide

203X11 Instructions
203XII(B) Sufficiency

203kl408 Killing in Commission of or
with Intent to Commit Other Unlawful Aet

203k 1409 k. In General. Most Cited

Cases

Trial court's jury instructions on the elements
of intentional felony murder, whieh tracked the
language contained in the Pattern Criminal Jury In-
structions, fairly instructed the jury on the correct
principles of law to be applied to the case. McKin-
ney's Penal Law § 125.27(l)(a)(vii).

(7) Homicide 203 €=>576

203 Homicide

203111 Homieide in Commission of or with In-
tent to Commit Other Unlawful Act
203111(A) In General

203k576 k. Constitutional and Statutory
Provisions. Most Cited Cases

Statute regarding intentional felony murder in
the first degree was not unconstitutionally underin-
elusive because certain predicate felonies for felony
murder in the second degree were not included as
predicate felonies for intentional felony murder in
the first degree; the predicate felonies identified by
defendant as having been irrationally omitted from
the statute were offensevS that had less potential for
violence and physical injury than those included
therein, and thus, the decision of the Legislature to
exclude those predicate felonies was rational.
U.S.C.A. Const. Amend. 14; MeKinney's Penal Law
§ 125.27(1 )(a)(vii).

**795 William G, Pixley, Rochester, for Defend-
ant-Appellant.

© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1357

Page 3

04158

5! A.D.3d 1369, 856 N.Y.S.2d 793, 2008 N.Y. Slip Op.
(GiteW 51 A.D,3d 1369, 856 N.Y,S.2d 793)

Michael C. Giccn, District Attorney, Rochester (
Wendy Evans Lehmann of Counsel), for Respond-
ent.

PRESENT: SCUDDER, P.J., SMITH, CENTRA,
PERADOTTO, AND PINE, JJ.

MEMORANDUM:

[1] *1370 Defendant appeals from a judgment
convicting him, after a jury trial, of two eounts of
murder in the fust degree (Penal Law § 125.27
[l][a][vii] ), as well as two counts of rape in the
first degree (§ 130.35 [1] ) with respect to a third
victim. We reject defendant's contention that Su-
preme Court erred in refusing to direct the People
to disclose records pertaining to a “community atti-
tude survey” that was commissioned by the People
prior to jury selection and in refusing to order an
inquiry into the possible racial bias in the jury se-
lection process caused by the People’s use of that
survey. The record establishes that the survey was
completed several weeks prior to the commence-
ment of jury selection and that none of the pro-
spective jurors who ultimately were selected had
participated in the survey. There is no indication in
the record that any of the jurors were racially
biased. Furthermore, we note that the court allowed
unlimited voir dire on the issue of racial bias and
that defendant employed his own jury consultant,
who was present throughout jury selection. We
therefore conclude that defendant was not denied
"his right to a fair trial before an unbiased fact find-
er” {People v. Arnold, 96 N.Y.2d 358, 362, 729
N.Y.S.2d 51, 753 N.E.2d 846).

[2] We also reject defendant's contention that
the court abused its discretion in refusing to sever
the murder counts from the *1371 rape counts for
trial {see CPL 200.20[3]; see generally People v.
Lane, 56 N.Y.2d i, 7, 451 N.Y.S,2d 6, 436 N.E.2d
456; People v. Brown, 254 A.D.2d 781, 782, 680
N.Y.S.2d 328, Iv. denied 92 N.Y.2d 1029, 684
N.Y.S.2d 494, 707 N.E.2d 449). Rape in the first
degree was the underlying felony for each count of

felony murder, and the People thus had to establish
defendant's rape of the felony murder victims. We
therefore conclude that the counts were properly
joined inasmuch as the offenses are "similar in law”
(CPL 220.20[2j[c]; see generally Brown, 254
A.D.2d 781, 680 N.Y.S.2d 328, Iv. denied 92
N.Y.2d 1029, 684 N.Y.S.2d 494, 707 N.E.2d 449),
and we further conclude that defendant failed to es-
tablish good cause for severance {see CPL 220.20

[3D-

[3] We reject defendant's further contention
that the court erred in permitting the victim who
was the subject of the two rape counts to testify that
during the course of the rape defendant stated, "I
did this before. Sooner or later I'm going to get
caught. 1 might as well face my consequences.” The
statement was properly admitted as part of the res
gestae of the rape eounts (see People v. Lewis, 25
A.D.3d 824, 826, 806 N.Y.S.2d 317, h. denied 1
N.Y.3d 791, 796, 821 N.Y.S.2d 821, 826, 854
N.E.2d 1285, 1290; People v. Ayala, 273 A.D.2d
40, 709 N.Y.S,2d 528, /v. denied 95 N.Y.2d 863,
715 N.Y.S.2d 217, 738 N.E.2d 365; People v.
Chavys, 263 A.D.2d 964, 965, 695 N,Y.S.2d 438,
Iv. denied 94 N.Y.2d 821, 702 N.Y.S.24 591, 724
N.E.2d 383), and it constituted an admission with
respect to those counts (see generally People v.
Geddes, 49 A.D.3d 1255, 856 N.Y.S.2d 336; **796
People v. Figgins, 48 A.D,3d 1042, 849 N,Y.S.2d
845). We note that the court properly instructed the
jury to consider die testimony only with respect to
the rape counts, and not the murder counts, thus
limiting “ ‘the possibility of prejudice’ ” ( People v.
Dozier, 32 A.D.3d 1346, 1347, 821 N.Y.S.2d 726,
Iv. dismissed 8 N.Y-3d 880, 832 N.Y.S.2d 492, 864
N.E.2d 622; see generally People v. Dickson, 21
A.D.3d 646, 647, 799 N.Y.S.2d 657).

[4] [5][6] Defendant failed to preserve for our
review his contention that the court erred in permit-
ting a lay witness to give an expert opinion, i.e.,
that the bag that he observed defendant holding
contained cocaine (see generally People v. Wade,
38 A.D.3d 1315, 1316, 832 N.Y.S.2d 734, Iv.

©2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1358

Page 4

0415$

51 A.D,3d 1369, 856 N.Y.S.2d 793, 2008 N.Y Slip Op.
(Cite as: 5 1 A.D.3U 1369, 856 N.Y,S.2d 793)

denied 8 N.Y. 3d 992, 838 N.Y,S.2d 495, 869
N,E.2d 67 1 ; People v. Highsmiih, 254 A.D.2d 768,
769, 679 N Y.S.2d 758, Iv. denied 92 N.Y,2d 983,
683 N.Y.S.2d 764, 706 N.E.2d 752, 92 N.Y.2d
1033, 684 N.Y.S.2d 498, 707 N.E.2d 453). In any
event, the reeord establishes that the witness merely
surmised that the bag contained eoeaine. By sug-
gesting during defendant’s cross-examination of
that witness that the witness had identified defend-
ant in order to collect a $5,000 reward, defendant
opened the door to questioning of that witness and a
police officer that the witness identified defendant
six days before he inquired about the reward (see
generally People v. James, 48 AJD.3d 698, 852
N.Y.S.2d 332; People v. Seavy, 16 A.D.3d 1130,
791 N,Y.S.2d 249; People v. Greene, 306 A.D.2d
639, 642, 760 N.Y.S.2d 769, Iv. denied 100 N.Y.2d
594, 766 N.Y.S.2d 170, 798 N.E.2d 354). Defend-
ant failed to preserve for our *1372 review his fur-
ther contention that the testimony of the officer im-
properly bolstered the testimony of the witness who
identified defendant (see People v. Mattis, 46
A,D.3d 929, 931, 846 N.Y.S.2d 757; People v.
Gousse, 43 A.D.3d 958, 841 N.Y.S.2d 383). In any
event, any error in the admission of that testimony
is harmless (see generally People v. Grant, 7
N.Y.3d 421, 424, 823 N.Y.S.2d 757, 857 N.E.2cl
52; People v. Crimmins, 36 N.Y.2d 230, 241-242,
367 N.Y.S.2d 213, 326 N.E.2d 787). We further
conclude that, although defendant is correct that the
People violated a ruling of the court by eliciting
testimony from the witness and the officer that the
witness had identified defendant in a photographic
array, the violation of that ruling also is harmless
error (see generally Grant, 7 N.Y.3d at 424, 823
N.Y.S,2d 757, 857 N.E.2d 52). We reject defend-
ant's contention that the court erred in instructing
the jury with respect to the elements of intentional
felony murder under Penal Law § 125.27

(l)(a)(vii). The court's instructions tracked the lan-
guage contained in the Pattern Criminal Jury In-
structions, and we conclude that the court “fairly
instructed the jury on the correct principles of law
to be applied to the case” (People v. Ladd, 89
N,Y.2d 893, 896, 653 N.Y,S.2d 259, 675 N.E.2d

1211 ).

[7] We rejecl defendant's further contention
that Penal Law § 125.27(l)(a)(vii) is unconstitu-
tionally underinehisive because eertain predicate
felonies enumerated in Penal Law § 125.25(3),
felony murder in the seeond degree, 3re not in-
eluded as predicate felonies for intentional felony
murder in the first degree. The Court of Appeals
has explained that one of the goals of the Legis-
lature in enacting section 125.27(!)(a)(vii) was to
limit the predicate felonies for intentional felony
murder to “those that are potentially the most viol-
ent and involve a substantial risk of physical in-
jury” (People v. Harris, 98 N.Y. 2d 452, 476, 749
N,Y.S.2d 766, 779 N.E.2d 705). We note that the
predicate felonies contained in section 125.25(3),
identified by defendant as having been Irrationally
omitted from section 125.27(1 )(a)(vii), are offenses
that have less potential for violence **797 and
physical injury than those included therein. We
therefore eonclude that the decision of the Legis-
lature to exclude certain predicate felonies is ration-
al and thus that Penal Law § 1 25.27(1 )(a)(vii) is not
unconstitutionally underinclusive (see generally
Harris, 98 N.Y.2d at 477, 749 N.Y.S.2d 766, 779
N.E.2d 705).

Finally, we note that the certificate of convic-
tion contains clerical errors, i.e., it omits the sen-
tence imposed for the first count of murder in the
first degree, it incorrectly reflects that defendant
was convicted of murder in the first degree pursu-
ant to Penal Law § 125.27 -1G rather than section
125.27(l)(a)(vii), and it incorrectly reflects that de-
fendant was sentenced to an indeterminate sentence
of 25 years to life for each of the two *1373 rape
counts, rather than a determinate sentence of 25
years. The certificate of conviction must therefore
be amended to correct those clerical errors (see
generally People v. Saxton, 32 A.D.3d 1286, 821
N,Y.S.2d 353).

It is hereby ORDERED that the judgment so
appealed from is unanimously affirmed.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1359

Page 5

51 A.D.3d 1369, 856 N.Y.S.2d 793, 2008 N.Y, Slip Op. 04158
(Ci te as: 51 A D.3d 1369, 856 N.Y.S.2d 793)

N.Y.A.D, 4 Dept.,2008.

People v. Owens

51 A.D.3d 1369, 856N.Y.S.2d 793, 2008 N.Y. Slip
Op. 04158

END OF DOCUMENT

€>2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1360

Westiaw,

894N.IJ.2d 662

i 1 N.Y.3d 740, 894 N.E.2d 662, 864 N.Y.S.2d 398 (Table)

(Cite as: 11 N.Y.3d 740)

(The decision of the Court of Appeals of New York
is referenced in the North Eastern Reporter and
New York Supplement in a table entitled
“Applications for Leave to Appeal - Criminal,”)

Court of Appeals of New York
People
v.

John Owens
August 07, 2008

4th Dept.: 51 A.D.3d 1369, 856 N.Y.S.2d 793
{Monroe)

Graff co, J.
Denied.

N.Y. 2008.

People v, Owens

11 N.Y.3d 740, 894 N.E.2d 662, 864 N.Y.S.2d 398
(Table)

END OF DOCUMENT

© 20 1 1 Thomson Reuters. No Claim to Orig. US Gov, Works,

Page 1

1361

Responses of Wilma A. Lewis
Nominee to be Judge for the District of the Virgin Islands
to the Written Questions of Senator Chuck Grassley

1. According to media reports citing Justice Department officials in 2000, you

disagreed with then-Attorney General Janet Reno about the application of the death
penalty to Carl Cooper, a man convicted under federal law of murdering three
Starbucks employees here in Washington, D.C. You believed the death penalty was
inappropriate because it had been rejected by D.C. voters, and because it would be
unfair to apply it against a black man for the murder of two white victims and one
black victim.

a. As I understand it, the Virgin Islands does not have a death penalty statute,
however federal death penalty statutes still apply. If confirmed, will you
apply the death penalty in appropriate cases?

Response: If confirmed, I will apply the death penalty in appropriate cases.

While it is true that, during my tenure as United States Attorney for the Distriet of
Columbia, my recommendation to then Attorney General Janet Reno against
seeking the death penalty in United States v. Carl Cooper was not accepted by the
Attorney General, neither the issue of race nor the anti-death penalty sentiments
of District of Columbia voters played any role in forming the basis for my
recommendation. Rather, the recommendation in Cooper was based on a full
review of the relevant facts and case law, as presented by both the prosecution
and defense counsel, including an analysis of applicable aggravating and
mitigating factors. The fact that l had no reservations about recommending the
death penalty for a black defendant, and contrary to the anti-death penalty
sentiments of the local populace, is evidenced by my submission of such a
recommendation to the Attorney General in another federal death-eligible matter
that followed in relatively close proximity to the Cooper case. As previously
noted, if 1 am confirmed as a federal district judge, I will apply the death penalty
in appropriate cases.

b. Do you believe the defendant’s race should be a factor when deciding
whether or not to impose the death penalty in a first degree murder case?

Response: I do not believe, nor have I ever believed, that the defendant’s race
should be a factor in deciding whether or not to impose the death penalty in a
death-eligible first degree murder case. Please also see my response to Question
No. 1(a).

2. During your tenure as a United States Attorney for the District of Columbia, you
expanded the “Operation Ceasefire” program to prosecute both violent and non-
violent criminals in possession of handguns. Considering the Supreme Court’s

1362

recent decisions in D.C. v. Heller and McDonald v. Chicago, do you believe this
program would be constitutional today?

Response: During my tenure as United States Attorney for the District of Columbia, the
Office prosecuted individuals in possession of firearms in accordance with applicable
laws. A careful analysis of the Supreme Court precedent in Heller and McDonald and
the particular law in question would be required to determine whether the prosecution of
violent and non-violent criminals in possession of handguns would be constitutional
today. In both Heller and McDonald, the Supreme Court noted that the right to keep and
bear arms guaranteed by the Second Amendment is not without its limitations. In that
regard, the Court cited certain prohibitions or restrictions on the possession of firearms
that would be unaffected by the Court’s ruling, including, for example, the possession of
firearms by felons and the carrying of firearms in sensitive places such as schools and
government buildings. In addition, the Supreme Court did not address the full scope of
the Second Amendment right. If confirmed as a judge for the District of the Virgin
Islands and presented with an issue regarding the constitutionality of a law prohibiting or
restricting the possession of firearms, I will closely examine and follow the decision and
reasoning in Heller , McDonald , and any other applicable Supreme Court and Third
Circuit precedent in addressing the scope of the individual Second Amendment right.

3. In a speech to the 2001 Virgin Islands Judicial Conference, you criticized the
Supreme Court’s decision in Bush v. Gore and then said, “Courage is one of the
qualities needed in all judges - including the courage to be a servant of the law and
to pursue the cause of justice even when you stand alone.”

a. Would you please explain to me what you meant by this statement?

Response: The theme for the 2001 Virgin Islands Judicial Conference was
“Continuing the Quest for Excellence: Public Trust and Confidence in the
Courts.” I used a widely quoted passage from Justice Stevens’ dissent in the then-
recent case of Bush v. Gore as an introduction to my remarks because of Justice
Stevens’ focus on the importance of public confidence in those who administer
the judicial system as fundamental to the rule of law. As I noted, “[rjegardless of
which side of the controversy one happens to be aligned,” one could not help but
be struck by Justice Stevens’ strongly worded dissent that went to the core of our
judicial system.

Later in my remarks and completely separate from the Bush v. Gore introduction,

I discussed the importance of an independent judiciary, impartiality and integrity
in fostering public trust and confidence in the courts. 1 made the statement
referenced in this question in the following context:

The challenging climate in which judges operate also includes
the precarious position in which elected judges must find
themselves, subject as they are to the pressures, demands and
necessities of election politics. ... Election politics would seem

2

1363

to fly in the face of the expectation that judges should decide
the legal issues before them - in the words of the 19 th century
jurist Judge William Cranch - “undisturbed by the clamor of the
multitude.” The pressures, tensions and undue influences which
sometimes infect the judicial environment threaten the
independence and integrity of the judiciary and threaten to
undermine the rule of law. Former Chief Judge of the District
of Columbia Circuit Abner Mikva once noted that the quality
most needed in federal judges is courage. 1 suggest that courage
is one of the qualities most needed in all judges - including the
courage to be a servant of the law and to pursue the cause of
justice even when you stand alone.

(underlining supplied). The statement in question was intended to emphasize the
importance to the integrity of the judicial process of judges who administer justice
impartially and with a firm commitment to the rule of law, notwithstanding the
clamor of the crowds, or public pressure, influence or sentiment.

b. How does your view compare to Alexander Hamilton’s view, espoused in
Federalist No. 78, that “it is indispensable that [the courts] should be bound
down by strict rules and precedents”?

Response: The view expressed in my remarks is entirely consistent with the
quoted excerpt from Federalist No. 78 to the extent that they both speak to a firm
commitment to the rule of law.

4. The Khobar Towers Case was transferred from the U.S. Attorney’s Office for the
District of Columbia, which you headed at the time, because of the slow pace of the
probe. You criticized the move and characterized then-KBI director Louis Freeh’s
initiative to transfer the case as “ill-conceived and ill-considered.” Time magazine
noted your comments “were not exactly the norm for a federal official.” Do you
believe your reaction demonstrated the appropriate judicial temperament required
to sit as a federal district court judge?

Response: During the course of my almost 30-year professional career, the referenced
incident represents the only occasion, of which 1 can recall, when I spoke out publicly
and aggressively on an internal matter of concern. As I noted at the time: “[i]t is not my
practice to respond to press inquiries on matters of this nature. Flowever, the integrity
and reputation of the United States Attorney’s Office and the prosecutors, who have
worked diligently and capably for years on this sensitive and significant investigation,
demand that 1 do.”

I do not agree with any contention or suggestion that the reassignment of the Khobar
Towers matter was due to any problem with the manner in which the United States
Attorney’s Office, in conjunction with the Department of Justice, had handled the matter.
1 also do not believe that the decision to reassign the case - which was made without any

3

1364

substantive input regarding the facts and circumstances of the investigation from the U.S.
Attorney’s Office and Department of Justice prosecutors assigned to the matter - was the
product of either informed deliberations or an objective review. Nonetheless, if I were
faced with the same situation today - with ten years of additional seasoning - I would
resort to my characteristically less public and more measured demeanor, an appropriate
temperament that, if confirmed, I would bring to the federal bench.

5. Do you believe it is proper for a judge, consistent with governing precedent, to strike
down an act of Congress that it deems unconstitutional? If so, under what
circumstances, and applying what factors?

Response: Yes. I believe it is appropriate for a judge to strike down an act of Congress
when Congress has exceeded its authority under the Constitution or enacted a statute that
is in conflict with the Constitution. Any such ruling should be guided by and follow the
governing precedent established by the Supreme Court and the applicable United States
Court of Appeals.

6. What is the most important attribute of a judge, and do you possess it?

Response: I believe that the most important attribute of a judge is the ability to be a fair
and impartial adjudicator, with a strong commitment to the rule of law and its equal
application to all parties. 1 believe that I possess this attribute.

7. Please explain your view of the appropriate temperament of a judge. What
elements of judicial temperament do you consider the most important, and do you
meet that standard?

Response: 1 believe that a judge should have the kind of temperament that promotes
confidence in, credibility, and respect for the judicial process and system. In this regard,
the judge should: (1) preside over matters in a manner that is even-handed, fair and
impartial, and exhibits respect for the rule of law and the right of parties to be heard; (2)
be professional, dignified and respectful in his or her dealings with all who enter the
courtroom, including the judge’s staff, court staff, lawyers, litigants, witnesses, jurors,
and the general public; and (3) be firm in maintaining the kind of order and decomm in
the courtroom and fostering the kind of practices before the court that are in accordance
with the high ethical and other standards that are critical to the integrity of the judicial
process. 1 believe that I meet this standard.

8. In general, Supreme Court precedents are binding on all lower federal courts and
Circuit Court precedents are binding on the district courts within the particular
circuit. Are you committed to following the precedents of higher courts faithfully
and giving them full force and effect, even if you personally disagree with such
precedents?

Response: Yes.

4

1365

9. At times, judges are faced with cases of first impression, if there were no controlling
precedent that dispositively concluded an issue with which you were presented, to
what sources would you turn for persuasive authority? What principles will guide
you, or what methods will you employ, in deciding cases of first impression?

Response: If confirmed as a judge for the District of the Virgin Islands and faced with a
case for which there is no dispositive controlling precedent from the United States
Supreme Court or the United States Court of Appeals for the Third Circuit, I would
review Supreme Court and Third Circuit cases for any analogous matters that might
provide relevant guidance. 1 would also look to opinions from other circuits. In the
absence of any persuasive authority, I would examine carefully the text of the statutory or
other legal provision and construe it in accordance with the plain and ordinary meaning
of the language. In the event of ambiguity, 1 would seek to discern legislative intent. I
would be guided by the principles that my responsibility as a judge is to interpret and
apply the law, not to make the law, and that 1 should address the matter as narrowly as
possible.

10. What would you do if you believed the Supreme Court or the Court of Appeals had
seriously erred in rendering a decision? Would you apply that decision or would
you use your own judgment of the merits, or your best judgment of the merits?

Response: If confirmed as a judge for the District of the Virgin Islands, I would be
bound by, and follow faithfully, the legal precedent established by the United States
Supreme Court and the United States Court of Appeals for the Third Circuit.

Accordingly, even if 1 believed that the Supreme Court or the Court of Appeals had
seriously erred in rendering a decision, I would apply that decision.

11. As you know, the federal courts are facing enormous pressures as their caseload
mounts, if confirmed, how do you intend to manage your caseload?

Response: Recognizing the great value that comes from experience, I would, if
confirmed, first consult with, and seek guidance from, more seasoned judges regarding
their caseload management practices with an eye toward obtaining information regarding
successful approaches to case management that would be helpful in managing my own
docket. I also expect that, in managing my caseload, 1 would set and enforce reasonable,
but firm deadlines; schedule and conduct status conferences designed to promote
continuous forward progress toward the ultimate resolution of each case; and work
diligently to resolve pending motions in a timely manner. I would also seek to effectively
incorporate the Magistrate Judge into the work of the court, and encourage the use of
alternative dispute resolution procedures.

12. Do you believe that judges have a role in controlling the pace and conduct of
litigation and, if confirmed, what specific steps would you take to control your
docket?

5

1366

Response: Yes, I believe that judges play a key role in controlling the pace and conduct
of litigation. If confirmed, 1 would take the steps set forth in response to Question No. 1 1
to control my docket.

13. Please describe with particularity the process by which these questions were
answered.

Response: I received the questions from the Department of Justice on May 31, 201 1. I
prepared responses and reviewed them with a representative of the Department of Justice.
After finalizing the responses, I authorized their transmittal to the Senate Judiciary
Committee.

14. Do these answers reflect your true and personal views?

Response: Yes.

6

1367

Responses of Wilma A. Lewis
Nominee to be Judge for the District of the Virgin Islands
to the Written Questions of Senator Tom Coburn, M.D.

1. Some people refer to the Constitution as a “living” document that is constantly
evolving as society interprets it. Do you agree with this perspective of constitutional
interpretation?

Response: I do not agree with the proposition that the Constitution is constantly evolving
as society interprets it. The Constitution can be altered only through the amendment
process.

2. Justice William Brennan once said: “Our Constitution was not intended to preserve
a preexisting society but to make a new one, to put in place new principles that the
prior political community had not sufficiently recognized.” Do you agree with him
that constitutional interpretation today must take into account this supposed
transformative purpose of the Constitution?

Response: No.

3. Do you believe judicial doctrine rightly incorporates the evolving understandings of
the Constitution forged through social movements, legislation, and historical
practice?

Response: No. The text of the Constitution governs and district judges are bound by that
text, as interpreted by the Supreme Court and the applicable Circuit Court.

4. Is any transaction involving the exchange of money subject to Congress’s
Commerce Clause power?

Response: In United Stales v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison ,
529 U.S. 598 (2000), the Supreme Court ruled that Congress had broad, but not unlimited
powers under the Commerce Clause, if confirmed as a judge for the District of the
Virgin Islands, I would apply those precedents as well as any other applicable precedents
from the Supreme Court and the Court of Appeals for the Third Circuit in addressing the
reach of Congress’ power under the Commerce Clause.

5. The U.S. Supreme Court held in District of Columbia v. Heller, 554 U.S. 570 (2008),
that the Second Amendment of the United States Constitution “protects an
individual right to possess a firearm unconnected to service in a militia, and to use
that arm for traditionally lawful purposes, such as self-defense within the home.”

As Justice Scalia’s opinion in Heller pointed out. Sir William Biackstone, the
preeminent authority on English law for the Founders, cited the right to bear arms
as one of the fundamental rights of Englishmen. Leaving aside the McDonald v.
Chicago decision, do you personally believe the right to bear arms is a fundamental
right?

1

1368

Response: I have not analyzed this area of constitutional law so as to form a personal
view or belief regarding the issue of fundamental rights. Nor would any personal view or
belief interfere with my ability and commitment, if confirmed, to faithfully follow
governing precedent. In McDonald v. City of Chicago, 1 30 S.Ct. 3020 (201 0), the
Supreme Court ruled that an individual’s right under the Second Amendment to keep and
bear arms is enforceable against the States through the Fourteenth Amendment. In so
ruling, the Supreme Court concluded that this Second Amendment right is a fundamental
right. If confirmed as a judge for the District of the Virgin Islands, I will follow this and
any other related Supreme Court precedent, as well as any applicable precedent of the
United States Court of Appeals for the Third Circuit.

a. Do you believe that explicitly guaranteed substantive rights, such as those
guaranteed in the Bill of Rights, are also fundamental rights? Please explain
why or why not.

Response: I have not analyzed this area of constitutional law so as to form a
personal view or belief as to whether explicitly guaranteed substantive rights arc
also fundamental rights. Nor would any personal view or belief interfere with my
ability and commitment, if confirmed, to faithfully follow governing precedent. If
confirmed as a judge for the District of the Virgin Islands, 1 will follow applicable
Supreme Court and Third Circuit precedent.

b. Is it your understanding of Supreme Court precedent that those provisions of
the Bill of Rights that embody fundamental rights are deemed to apply
against the States? Please explain why or why not.

Response: I have not analyzed this area of constitutional law so as to be fully
conversant with the entire body of Supreme Court precedent. However, in
McDonald v. City of Chicago, 1 30 S.Ct. 3020, 3036 (2010), the Supreme Court
ruled that the Second Amendment right to keep and bear arms is enforceable
against the States through the Fourteenth Amendment, and in so doing analyzed
whether the right was “fundamental” to our Nation’s “scheme of ordered liberty”
or “deeply rooted in this Nation’s history and tradition.”

c. The Heller Court further stated that “it has always been widely understood
that the Second Amendment, like the First and Fourth Amendments, codified
a pre-existing right.” Do you believe that the Second Amendment, like the
First and Fourth Amendments, codified a pre-existing right? Please explain
why or why not.

Response: I have not analyzed this area of constitutional law so as to form a
personal view or belief as to whether the First, Second and Fourth Amendments
codified pre-existing rights. Nor would any personal view or belief interfere with
my ability and commitment, if confirmed, to faithfully follow governing
precedent. If confirmed as a judge for the District of the Virgin Islands, I will
follow the Heller decision and any other applicable Supreme Court and Third
Circuit precedent.

2

1369

6. Some have criticized the Supreme Court’s decision in Heller saying it “discovered a
constitutiona) right to own guns that the Court had not previously noticed in 220
years.” Do you believe that Heller “discovered” a new right, or merely applied a
fair reading of the plain text of the Second Amendment?

Response: The decision in Heller was based on the Supreme Court’s reading of the text
of the Second Amendment.

a. Similarly, during his State of the Union address, the President said the

Supreme Court’s decision in Citizens United v. FEC, 558 U.S. (2010),

“reversed a century of law” and others have stated that it abandoned “100
years of precedent.” Do you agree that the Court reversed a century of law
or 100 years of precedent in the Citizens United decision? Please explain why
or why not.

Response: 1 have not analyzed this area of law so as to form a personal view on
this subject. Nor would any personal view interfere with my ability and
commitment, if confirmed, to faithfully follow governing precedent. If confirmed
as a judge for the District of the Virgin Islands, 1 will follow the Supreme Court’s
decision in Citizens United v. FEC.

7. What limitations remain on the individual Second Amendment right now that it has
been incorporated against the States?

Response: In both Heller and McDonald, the Supreme Court noted that the right to keep
and bear arms guaranteed by the Second Amendment is not without its limitations. In
that regard, the Court cited certain prohibitions or restrictions regarding firearms that
would be unaffected by the Court's ruling, such as the possession of firearms by felons
and the mentally ill, the carrying of firearms in sensitive places, and the placing of
conditions on the commercial sale of firearms. However, the Court did not address the
full scope of the Second Amendment, including all of the limitations to the individual
right to keep and bear arms. If confirmed as a judge for the District of the Virgin Islands,
I will closely examine and follow the decision and reasoning in Heller , McDonald, and
any other applicable Supreme Court and Third Circuit precedent in addressing issues
related to the. scope of the individual Second Amendment right.

8. Is the Second Amendment limited only to possession of a handgun for self-defense in
the home, since both Heller and McDonald involved cases of handgun possession for
self-defense in the home?

Response: The Supreme Court in Heller and McDonald did not address the full scope of
the individual right to keep and bear arms under the Second Amendment. If confirmed as
a judge for the District of the Virgin Islands, I will closely examine and follow the
decision and reasoning in Heller, McDonald, and any other applicable Supreme Court
and Third Circuit precedent in addressing issues related to the scope of the individual
Second Amendment right.

3

1370

9. In Roper v. Simmons, 543 U.S. 551 (2005), Justice Kennedy relied in part on the
“evolving standards of decency” to hold that capital punishment for any murderer
under age IS was unconstitutional. I understand that the Supreme Court has ruled
on this matter, but do you agree with Justice Kennedy’s analysis?

Response: If confirmed as a judge for the District of the Virgin Islands, 1 would be
bound to follow governing precedent. I would therefore follow the Supreme Court’s
decision and reasoning in Roper v. Simmons and any other applicable Supreme Court and
Third Circuit precedent.

a. Do you agree that the Constitution’s prohibition on cruel and unusual
punishment “embodies a principle whose application is appropriately
informed by our society's understanding of cruelty and by what punishments
have become unusual?”

Response: If confirmed as a judge for the District of the Virgin Islands, I would
be bound to follow governing precedent. In determining what constitutes cruel
and unusual punishment under the Eighth Amendment, 1 would therefore follow
Supreme Court precedent on this issue, including Roper v. Simmons, as well as
any applicable Third Circuit precedent.

b. How would you determine what the evolving standards of decency are?

Response: If confirmed as a judge for the District of the Virgin Islands, I would
follow the analytical approach adopted by the governing precedent in the
Supreme Court and the Third Circuit.

c. Do you think that a judge could ever find that the “evolving standards of
decency” dictated that the death penalty is unconstitutional in all cases?

Response: 1 do not believe that a judge could find that the death penalty is
unconstitutional in all cases in view of the Supreme Court precedent establishing
that the death penalty is constitutional, except in certain discrete circumstances.

d. What factors do you believe would be relevant to the judge’s analysis?

Response: 1 do not believe that any such analysis would be appropriate or
warranted in view of the Supreme Court precedent establishing that the death
penalty is constitutional, except in certain discrete circumstances.

e. When determining what the “evolving standards of decency” are, justices
have looked to different standards. Some justices have justified their
decision by looking to the laws of various American states, 1 in addition to
foreign law, and in other cases have looked solely to the laws and traditions

Roper v. Simmons , 543 U.S. 55 1 , 564-65.

4

1371

of foreign countries. 2 Do you believe either standard has merit when
interpreting the text of the Constitution?

Response: If confirmed as a judge for the District of the Virgin Islands, the
standards that would have merit for purposes of my decision making would be
those standards sanctioned by Supreme Court precedent.

i. If so, do you believe one standard more meritorious than the other?
Please explain why or why not.

Response: Please see my response to Question No. 9(e).

10. In your view, is it ever proper for judges to rely on foreign or international laws or
decisions in determining the meaning of the Constitution?

Response: I do not believe it is proper forjudges to rely on foreign or international laws
or decisions in determining the meaning of the Constitution unless Supreme Court
precedent so dictates.

a. Is it appropriate for judges to took for foreign countries for “wise solutions”
and “good ideas” to legal and constitutional problems?

Response: I do not believe it is appropriate forjudges to look to foreign countries
for wise solutions or good ideas to legal and constitutional problems unless
Supreme Court precedent so dictates.

b. If so, under what circumstances would you consider foreign law when
interpreting the Constitution?

Response: If confirmed as a judge for the District of the Virgin Islands, I would
not consider foreign law when interpreting the Constitution unless Supreme Court
precedent so dictates.

c. Do you believe foreign nations have ideas and solutions to legal problems
that could contribute to the proper interpretation of our laws?

Response: Regardless of whether foreign sources might be of assistance in
discrete instances, I do not believe it is appropriate forjudges to look to foreign
sources to interpret our laws unless Supreme Court precedent so dictates.

d. Would you consider foreign law when interpreting the Eighth Amendment?
Other amendments?

Response: If confirmed as a judge for the District of the Virgin Islands, I would
not consider foreign law when interpreting the Eighth Amendment or any other
amendments unless Supreme Court precedent so dictates.

2 Graham v. Florida , 130 S.Ct. 20 H, 2033-34.

5

1372

Responses of Marina Garcia Marmolejo
Nominee to be United States District Judge for the Southern District of Texas
to the Written Questions of Senator Chuck Grassley

1. In your Questionnaire, you indicated that most of your experience falls within
criminal law. Would you please explain your civil law experience and how it has
prepared you to sit as a federal district court judge, if confirmed?

Response: I have gained extensive experience in civil and commercial litigation during
my tenure as an attorney in private practice since 2007. I represented individuals and
companies involved in a variety of civil disputes and have worked closely with partners
who devote their entire practice to civil litigation. 1 have a firm grasp of the rules of civil
procedure and the practicalities faced by litigants in civil disputes. Though less than 5%
of the docket in the Laredo Division is civil litigation, I feel confident that my experience
has prepared me to effectively preside over these types of cases. 1 believe that my overall
experience as a federal prosecutor, federal defender, and private practitioner has prepared
me to preside over the civil and criminal dockets should I be fortunate enough to be
confirmed.

2. Do you believe it is proper for a judge, consistent with governing precedent, to strike
down an act of Congress that it deems unconstitutional? ]f so, under what
circumstances, and applying what factors?

Response: Yes. Judicial review makes it proper for a judge, consistent with governing
precedent, to hold that an act of Congress is unconstitutional when Congress has
exceeded its authority under the Constitution. Before holding a statute unconstitutional,
however, 1 would carefitlly review and apply Supreme Court precedent to ensure that 1
am correctly applying all necessary guiding principles.

3. What is the most important attribute of a judge, and do you possess it?

Response: The most important attribute of a judge is the ability to objectively apply the
law to the facts of each case. I believe 1 possess this attribute.

4. Please explain your view of the appropriate temperament of a judge. What
elements of judicial temperament do you consider the most important, and do you
meet that standard?

Response: A judge should lend a listening ear and should keep an open mind to the
arguments being presented. A judge should never prejudge any case. A judge should treat
all litigants and counsel with respect and dignity. If I am fortunate enough to be
confirmed, 1 will remain true to these convictions.

5. In general, Supreme Court precedents are binding on all lower federal courts and
Circuit Court precedents are binding on the district courts within the particular
circuit. Are you committed to following the precedents of higher courts faithfully

1373

and giving them full force and effect, even if you personally disagree with such
precedents?

Response: Yes.

6. At times, judges are faced with cases of first impression. If there were no controlling
precedent that dispositively concluded an issue with which you were presented, to
what sources would you turn for persuasive authority? What principles will guide
you, or what methods will you employ, in deciding cases of first impression?

Response: In considering a case of first impression, I would begin by reviewing the prior
rulings of the Fifth Circuit and the Supreme Court to determine if there is an analogous
situation. In matters concerning statutory interpretation, I would examine the plain
language of the statute. If the language of the statute is ambiguous, I would consider
legislative history and intent if available and appropriate. I would also look to analogous
precedent from other Circuit and District Courts.

7. What would you do if you believed the Supreme Court or the Court of Appeals had
seriously erred in rendering a decision? Would you apply that decision or would
you use your own judgment of the merits, or your best judgment of the merits?

Response: The role of a district judge is to faithfully apply the law. If confirmed, I would
follow precedent regardless of any personal beliefs.

8. As you know, the federal courts are facing enormous pressures as their caseload
mounts. If confirmed, how do you intend to manage your caseload?

Response: If confirmed, I would set reasonable, but firm scheduling deadlines. I would
work closely with my staff to make certain that items ripe for dispositive resolution are
handled expeditiously. I would work diligently to resolve pending motions on a timely
basis.

9. Do you believe that judges have a role in controlling the pace and conduct of
litigation and, if confirmed, what specific steps would you take to control your
docket?

Response: Yes, I believe judges have a role in controlling the pace and conduct of
litigation by scheduling regular hearings, setting and enforcing deadlines, and carefully
monitoring the progress of cases. If confirmed, 1 intend to work closely with my staff
and avail myself of the assistance of Magistrate Judges when appropriate.

10. Please describe with particularity the process by which these questions were
answered.

1374

Response: I received the questions on May 31, 20 1 1 . I prepared responses the next day.
1 then reviewed my responses with representatives of the Department of Justice, after
which I finalized my responses. 1 then authorized their transmittal to the Committee.

11. Do these answers reflect your true and personal views?

Response: Yes.

1375

Senator Chuck Grassley
Questions for the Record
Major General Marilyn A. Quagliotti

Deputy Director for Supply Reduction, Office of National Drug Control Policy

1 . What do you believe is the role of the Deputy Director of Supply Reduction within the
Office of National Drug Control Policy (ONDCP)?

ANSWER: The Office of Supply Reduction oversees activities to reduce the availability,
production, distribution and use of illicit drugs in the United States and abroad. Those
activities include developing, coordinating and implementing supply reduction policies, and
coordinating international interdiction, law enforcement, and intelligence. ONDCP is
committed to a balanced strategic approach to drug control by combining the impact of
both supply and demand reduction activities into an integrated whole.

2. What kind of leadership will you provide in Supply Reduction at ONDCP?

ANSWER: I will provide a fresh perspective to the Supply Reduction office. However,
ONDCP has a team of professionals with a vast amount of experience and if confirmed I
will seek their views and expertise when making policy decisions. I will not hesitate to ask
tough questions and make changes where necessary.

3. What qualifications do you have to effectively lead Supply Reduction?

ANSWER: As a military officer, I was a Commander five times and a Deputy Commander
or Vice Director twice. A commander is responsible for everything their organization does
or fails to do. My first command as a lieutenant in South Korea was a company of 70
people that was responsible for approximately $5 million dollars in assets and a budget of
approximately SI million dollars. The last unit I commanded spanned across Europe (U.K.,
Luxemburg, Belgium, the Netherlands, Germany, Italy, Switzerland, Kosovo and Bosnia),
and I was responsible for 10,000 soldiers, international government civilians and
contractors. I also managed a budget of 300 million dollars. In this position, I not only
interacted with my European Military counterparts but also with local law enforcement
professionals and elected officials regarding their government policies affecting the US
military and their families. My final assignment as Vice Director of the Defense
Information Systems Agency was as the Deputy for an organization with a global mission,
responsible for 16,000 people including military, government civilians and contractors, and
I managed a budget of 6.8 billion dollars.

4. What do you see as the biggest challenge for the new Deputy Director of Supply
Reduction?

ANSWER: The biggest challenge I will face, if confirmed as the new Deputy Director of
Supply Reduction will be to accurately diagnose the nature of the international drug threat
and how it affects the United States. I will need to identify the strengths and weaknesses in

1376

our strategy and ensure that we are effectively using both our coordinating and budgetary
authority in setting policy priorities.

5. What do you see as your most significant accomplishment?

ANSWER: My most significant accomplishment occurred upon my retirement. 1 left
behind a cadre of officers and senior Non Commissioned Officers that I helped to develop
for the future. Their professionalism and continued desire to serve is my most significant
accomplishment.

6. If confirmed, what is your plan for Supply Reduction to reduce the demand for narcotics
in the United States?

ANSWER: If confirmed, I will work to implement the National Drug Control Strategy,
which provides for a comprehensive, balanced and integrated approach to the drug threat.
Reducing the demand for drugs in the United States is the result of effective programs
combining prevention, treatment and recovery support, and reduced availability and
access to drugs.

7. Congress established the Office of National Drug Control Policy to oversee our federal
anti-drug efforts and to guarantee coordination and cooperation between other agencies
with a stake in our countemarcotics programs.

What recommendations would you make to ensure better coordination and cooperation
among the countemarcotics programs administered between the State Department, the
DOD, the DEA, Homeland Security, and USAID?

ANSWER: To ensure better coordination and cooperation among the counternarcotics
programs among our Federal partners is to provide clear, cogent, and comprehensive
strategy in policy decisions, with distinct guidance on necessary steps, responsibilities, and
priorities for the implementation of that strategy. ONDCP must also implement its
budgetary authorities in a manner that ensures the realization of that strategic vision.

8. You have a long, distinguished career as a military officer. However, your direct
experience with drug supply reduction is unclear. Would you please explain what direct
experience you will bring to this position, if confirmed?

ANSWER: 1 have spent 9 years overseas working with other countries on many issues. I
spent two years in Panama (1995-1997) where my unit deployed over 50 times into Central
and South America. We supported medical readiness exercises, school and road building
projects, and well digging projects. We also participated in peacekeeping/disaster relief
exercises with our military counterparts and often involved members of our State
Department as well as foreign government participants. At the time we were there, many of
these countries had ongoing insurgencies. I am familiar and understand the difficult
challenges that countries face in developing their own strategies to fight drug production

1377

and trafficking. 1 was also responsible for developing the command and control
architecture to support Joint Task Force Bravo in Honduras which played a direct role in
interdiction efforts, at that time. In addition, I spent time with the Colombian Army as an
advisor to assist them in developing a more effective command and control structure for
conducting their operations. From this experience, I gained valuable insights into the
challenges faced by countries under threat of drug trafficking organizations. In addition, I
was personally responsible for executing drug testing programs in all 5 of my military
commands and maintaining a drug free work environment. Along with this responsibility,
I was responsible for either recommending treatment for soldiers with drug addiction
problems or the application of non-judicial punishment under the Uniform Code of
Military Justice. Later, as the civilian workforce entered the drug testing program I was
responsible for the successful implementation of that program.

9. What performance measures do you consider most important for measuring the success
and failure of interdiction and eradication programs in the international arena?

ANSWER: The most direct and obvious measures of success are the metrics of drug
production in countries subject to eradication and interdiction pressure. An example would
be Colombia, where eradication pressure and interdiction, sustained over time and carried
out in the context of alternative economic development, citizen security, and robust
government presence, yielded reductions in the production and movement of both cocaine
and heroin. It is also important to look at the weakening or defeat of criminal or terrorist
organizations that control and benefit from drug production and distribution, and
measures showing the economic and political stability and viability of democratic
governments that can prosper once the drug threat is diminished. Eradication and
interdiction are necessary tools in the total package of counter-drug efforts, and their
success can be seen along the entire spectrum of strategic goals for U.S. policy regarding
partner nations.

10. You are associated with the Durango Group. There has been criticism of the firm, raising
conflict of interest concerns. As I understand it, Durango associates arc often on the
military’s payroll as mentors while also consulting with defense contractors.

a. What is your status with the Durango Group?

b. Have you personally acted in a capacity as I describe - being a paid military
mentor while serving as a paid consultant to a defense contractor? Do you see
any problem with this arrangement that permits Durango associates to draw
income from multiple sources?

c. Has the Durango Group had any association with the ONDCP?
ANSWER:

1378

a. 1 am listed as an associate for Durango Group but currently do not have any
clients. Upon confirmation, I will dissolve my agreement with Durango
Group.

b. I have never been a paid military mentor. 1 think each individual must follow
the advice of their own government assigned ethics counselor, regarding
conflicts of interest.

c. Not to my knowledge.

1 1 . The United States has provided billions to Mexico through the Merida Initiative for

equipment, training, and technical assistance to help address cross-border drug trafficking,
violence and organized crime. However, the violence has continued to escalate along the
Southwest Border.

a. What additional steps would you recommend to address the violence along the
Southwest Border being promulgated by drug trafficking organizations?

ANSWER: If confirmed, I would recommend additional emphasis on reducing weapons
and revenue flow to drug trafficking organizations (DTOs); helping to reform and
strengthen judicial and prosecutorial institutions in Mexico; promoting more effective
integration of military and law enforcement interaction in Mexico; developing greater
intelligence sharing; developing more vetted and well-trained law enforcement and military
forces in Mexico (including insistence on human rights standards); helping to counter
institutional corruption; and reducing drug demand in the United States to curtail revenue
and incentives for drug traffickers.

b. ONDCP is one of the primary coordinators of the new Southwest Border
Countemarcotics Strategy currently being developed. What are your goals for the
Merida Initiative and how will you work with the other agencies to improve
coordination of our limited resources?

ANSWER: If confirmed, one of my long term goals for the Merida Initiative is a more
peaceful and stable Mexico, free from the excessive corruptive influence of transnational
drug trafficking organizations, and the successful transition of a national security threat to
a law enforcement problem. I will also use the ONDCP chairmanship of the Southwest
Border Counternarcotics Strategy Executive Steering Group to oversee implementation of
the Strategy across 20 different drug control agencies. Through this venue, I hope to
ensure a congruent and complementary balance between the Southwest Border strategy
and the Merida Initiative action items. In addition, if confirmed, I will work to link the
numerous strategies (Northern Border Counternarcotics Strategy, Southwest Border
Counternarcotics Strategy) and the several State Department initiatives (Merida Initiative,
Central American Regional Security Initiative and Caribbean Basin Security Initiative)

1379

together by using the National Drug Control Strategy as the overarching umbrella
document.

12. The situation in Colombia has improved dramatically since Plan Colombia was first
proposed. However significant amounts of coca are still being grown and narco-terrorist
groups, such as the FARC, continue to use the proceeds to cause violence and instability. 1
am also concerned that other countries in the Andean Region are complicit in narcotics
trafficking in the region by limiting their countemarcotics programs and providing safe
havens to narcos.

a. The president of Bolivia, Evo Morales, has always supported increased
production of what he considers “licit” coca while significantly reducing
eradication efforts. What recommendations would you give to address the
increase in coca cultivation in Bolivia?

ANSWER: Coca cultivation has remained somewhat static in Bolivia over the last three
years; however, the potential production of cocaine in Bolivia has increased substantially
due to technology transfer from Colombian producers. But the threat of greater expansion
is real. Clearly, the Bolivian government has suffered from its decision to dismiss major
IJ.S. counternarcotics effort in that country through expulsion of the US Ambassador and
the DEA contingent. Bolivian cocaine is rarely directed towards the United States, and
instead is routed to markets in the South American region and in Europe. We need to
involve South American partners (such as Brazil, Chile, and Argentina) in more effective
counterdrug controls on Bolivian production, just as we need more serious contributions
from our European partners in exerting pressure on the government of Bolivia to contain
and defeat cocaine production.

b. It is reported that half of the cocaine produced in Colombia each year is transited
through Venezuela. The Chavez Government does very little to halt cocaine
movement and has significantly reduced the number of DEA agents allowed into
the country. What steps would you take to address the drug trafficking and narco-
terrorism problems in Venezuela?

ANSWER: Though the Venezuelan situation is complicated and presents us with few tools
to affect their behavior, the seriousness of the cocaine penetration of the government of
Venezuela is inescapable. If I am confirmed, I will investigate the issue you have raised and
collaboratively determine the best course of action and work to implement that course of
action.

13. As the pressure on Drug Trafficking Organizations has increased in Mexico, they have
shifted transiting routes farther south into Central America. 1 am also concerned about the
threat of further shifts to Caribbean and elsewhere in the Transit Zone.

In confirmed, what steps would you take to ensure that adequate air and marine assets are
available for drug interdiction activities in the Transit Zone?

1380

ANSWER: It is my understanding that ONDCP is conducting assessments of the optimum
lay-down of interdiction forces and assets in this region in order to provide strategic
guidance for budgetary and policy development in the Transit Zone. ONDCP has also
developed an ambitious goat for interdiction rates in the Transit Zone, building the
capacity to arrive at a 40 percent interdiction rate. If confirmed, I will continue this effort.

14. Terrorists use the billions of dollars generated by the drug production in Afghanistan to
fund terrorist activities and to destabilize the Afghan society and government. A main
tenant of President Obama’s Countcmarcotics Strategy for Afghanistan is to end
eradication efforts and focus on interdiction and alternative development. I agree that
interdiction and alternative development are vital, but enforcement and punishment must
also play an important role.

a. What do you see as ONDCP’s role in helping to reduce the proliferation of drugs
in Afghanistan?

ANSWER: If confirmed, I will coordinate all efforts with the Department of State,
Department of Defense and the Department of Justice to reduce the proliferation of drugs
from Afghanistan. This will include all aspects of Afghanistan counterdrug policy-
interdiction, alternative development, and institutional reform especially in the judicial
sector. In addition, if confirmed, I will facilitate international engagement in the U.S.
efforts to stem the flow of Afghan drugs, and specifically leverage Director Kerlikowske’s
important relationship with his Russian counterpart, Victor Ivanov, in their roles as co-
chairs of the US-Russia Bi-National Presidential Commission Drug Trafficking
Workgroup.

b. What are your goals for the countcmarcotics program in Afghanistan and how
will you work with the other agencies to improve coordination of our limited
resources?

ANSWER: ONDCP’s primary goal is to ensure that the counterdrug mission remains
integrated with our overall economic development and military security operations in
Afghanistan. Further, ONDCP must coordinate efforts with the new Senior Representative
for Afghanistan-Pakistan, Ambassador Marc Grossman, and work with his team in re-
assessing options and priorities. If confirmed, 1 would work to ensure stronger efforts are
made to develop a more comprehensive financial attack plan and to make arrest,
prosecution, and potential extradition of drug traffickers a more effective feature of our
plan.

15. A rapidly emerging drug trend among youth is the use of synthetic stimulants. These drugs
are often disguised as legitimate products and are sold in increasing numbers at local
shopping malls and online. However this growing use is leading to serious and deadly
consequences, including the death of an 18 year old recent high school graduate in
Indianola, Iowa.

a. If confirmed, will you work to combat this growing trend?

1381

ANSWER: Yes, I believe this is an emerging issue of concern - with international
implications - and if confirmed 1 will work with Director Kerlikowske to combat this trend.

b. What actions do you believe you could take to halt the spread of this abuse?

ANSWER: The actions taken to stop the abuse must be comprehensive in nature.
Prevention and treatment is essential. Drug free coalitions are well-placed to work toward
attracting local and community attention to this issue and implementing successful
environmental regulations. I understand the Office of Supply Reduction is working with
the DEA on drug scheduling issues so that the enforcement community has the tools they
need to prosecute manufacturers and sellers. If confirmed, 1 will continue this effort. 1 will
also work with relevant international bodies to make it harder to obtain the chemicals
necessary to produce these drugs.

16. The fastest growing drug abuse trend is the abuse of prescription and over-the-counter
drugs. According to the most recent National Survey of Drug Use and Health, nearly 7
million people have admitted to using controlled substances without a doctor’s
prescription. If confirmed, what actions will you take to fight this epidemic?

ANSWER: Prescription drug abuse is the fastest growing drug problem in the United
States and has been characterized as a public health epidemic by the Centers for Disease
Control and Prevention. If confirmed, in my capacity' as Deputy Director for Supply
Reduction, my role will be to fully support the Administration’s national prescription drug
plan. Specifically, my office will support DEA efforts against illegal Internet providers of
controlled substances, domestic and international, as well as operations they are mounting
to constrain the supply of diverted controlled substance medication by focusing on
wholesale distributors with anomalously large quantities provided well above medical need.
In addition, 1 understand ONDCP coordinates with our international partners in forums
such as the United Nations Office of Drugs and Crime Commission on Narcotic Drugs to
maintain global controlled substance treaties and standards for opiate distribution, in
conjunction with the World Health Organization. ONDCP also works with the
International Narcotics Control Board of the UNODC to monitor pharmaceutical
controlled substance global flow and the rising threat of counterfeit controlled substance
production and distribution. If confirmed, I will utilize all of these platforms to aid in
current efforts to fight this troubling new trend in drug abuse.

17. 1 often hear from state and local law enforcement that the Federal government is not the
most helpful partner when it comes to sharing information. What is your plan for
improving relations and information sharing between Federal, State, and local law
enforcement entities in your capacity as Deputy Director of Supply Reduction, if
confirmed?

ANSWER: I believe that constant consultation, communication and information sharing
are essential in understanding the needs of state, local and tribal authorities. If confirmed.

1382

1 will work closely with the Deputy Director for State, Local and Tribal Affairs Ben Tucker
to establish close relationships with law enforcement entities, especially those law
enforcement personnel that play a key role in Mexican and Canadian partnerships located
along the Southwest and Northern borders.

1383

Written Questions of Senator Tom Coburn, M.D.

Major General Marilyn A. Quagliotti, USA (Ret.)

Nominee, to be Deputy Director for Supply Reduction, Office of National Drug Control Policy
U.S. Senate Committee on the Judiciary

May 31, 2011

1 . There is no question you have served our country with honor during your distinguished
32-year military career. However, you are nominated to the position of Deputy Director
for Supply Reduction at the Office of National Drug Control Policy (ONDCP). That
office oversees activities to reduce the availability, production, and distribution of illicit
drugs in the United States and abroad. Those activities include developing, coordinating
and implementing supply reduction policies, and coordinating domestic and international
interdiction, law enforcement, and intelligence.

In reviewing your resume, I cannot find specific experience related to reducing drug
availability and production, developing drug policy or coordinating with domestic and
international law enforcement regarding drug supply reduction. Over the course of your
career, have you ever been involved in developing U.S. drug policy?

a. If so, how and in what capacity?

b. Have you specifically worked with Congress in the development of drug policy,
particularly related to drug supply reduction? If so, how and in what capacity?

ANSWER:

a. I have not been involved in developing U.S. drug policy at the national level;
however, throughout my career I have been responsible for the
implementation of drug policy. I also think that the best policy decisions are
made by people who have been on the ground and who rely on facts and
science. I have also witnessed the effects of smart drug policies. As a
lieutenant entering the Army just after Vietnam, I saw the toll that drug use
took on our soldiers and our ability to operate a military unit. The
introduction of drug testing policies in the military had a dramatic and
positive effect on the quality of the force. As a platoon leader and company
commander, I was personally responsible for executing these drug tests.

b. I have worked with Congressional staffers on many issues related to the
Defense Department while I worked at Defense Information Systems
Agency. If confirmed, I look forward to working with Congressional
staffers as well as members of Congress again in the development of U.S.
Drug policy.

2. Mexico and Columbia are two major source countries in the illegal drug flow into the
United States. Have you worked with either country on international policy development
to curb this drug flow?

I

1384

a. If so, what specific policies did you help to implement?

ANSWER: During my time in the Army, between 1995-1997, 1 advised the Colombian
Army on how to be more effective during eradication efforts and while conducting
operations against insurgent groups such as the FARC in the ungovernable regions of
Colombia. Although this was not an international policy development effort, the time spent
with the Colombian Army provided valuable insight regarding the difficult challenges
faced by the Colombian Government in its struggles to regain control of much of its
territory. Although Mexico is a very different situation, 1 believe the insight gained during
my time with the Colombian Army can inform my approach to drug policy development
with Mexico.

3. In 2007, the U.S. and Mexico formed a new cooperation and assistance program called
the Merida Initiative, which is a package of counterdrug and anti-crime assistance to
Mexico and Central America. While the authorization for funding has expired, do you
believe this Initiative has been successful in reducing the supply of drugs entering the
U.S. from Mexico and Central America? Why or why not?

a. What other effective policies do you believe should work in conjunction with or
in place of the Merida Initiative, particularly related to drug supply reduction?

ANSWER: The Merida Initiative has been one of the most important developments we
have seen in the history of the U.S./Mexico counterdrug partnership and it has had a
demonstrable effect on reducing the flow of cocaine into the United States. Additional
policy actions that complement our assistance to Mexico through the Merida Initiative
include continuing to strengthen U.S. efforts to diminish the southbound flow of weapons
and bulk cash associated with the drug trade.

b. Do you believe the Mexican government has increased its efforts to combat the
drug cartels that supply drugs to the U.S. and/or reformed its law enforcement and
judicial systems as it relates to drug-related crime?

ANSWER: 1 believe the Mexican government, since the election of President Calderon, has
stepped up its efforts significantly against drug cartels. A decision has been made to
courageously confront and defeat these forces, and this decision has led to a partnership
between our nation that is frankly unprecedented yielding over 20 cartel senior leaders
either killed or captured over the last year.

i. If so, how effective have those efforts been?

ANSWER: I believe progress has been made, and the commitment to reach our respective
national goals has never been stronger.

2

1385

c. In 2000, the U.S. increased its assistance to Columbia via Plan Columbia
in order to counter the country’s drug and security crisis. It was a six-year
plan, but assistance has continued beyond 2006. Do you believe Plan
Columbia had any effect on reducing the drug supply from Columbia to
the U.S.? Why or why not?

ANSWER: Yes, Plan Colombia has been a major policy success. Not only has Colombia
become a stronger, more safe, more prosperous, and more stable democracy during the
time of Plan Colombia, with advances in the rule of law, government presence, and support
for human rights, but one can see direct and positive impact on drug production. Between
2001 and today, reductions in the production of both cocaine and heroin in Colombia have
dropped steeply, declining by approximately 60 percent and 80 percent, respectively. The
positive impact of Plan Colombia has been felt on U.S. streets. In fact, the Colombia
experience has become a model for other nations around the world that confront similar
drug threats.

i. The Government Accountability Office (GAO) noted in a 2008 report that
U.S. efforts to transfer program operations and funding responsibilities
have had mixed results. What other effective policies do you believe
should be implemented in addition to, or in place of Plan Columbia,
particularly related to drug supply reduction?

ANSWER: Many lessons have been learned through Plan Colombia on how to be effective.
Creating disincentives to drug cultivation through eradication coupled with the provision
of security on the ground, and with efforts to provide alternative economic development
opportunities for Colombians is useful. Additionally, providing stronger economic and
judicial institutions have helped make the progress sustainable. Colombia can adopt a
stronger role in guiding its own counter-drug and economic development strategies.

Positive developments for the future should also include the benefits of a free-trade
agreement with the United States, and a stronger regional partnership with Colombia's
hemispheric neighbors, both of which are goals of newly-elected President Santos.

ii. Do you believe the Columbian government has increased its efforts to
combat drug cartels that supply drugs to the U.S. and/or reformed its law
enforcement and judicial systems as it relates to drug-related crime? If so,
how effective have those efforts been?

ANSWER: The Colombian government has made major strides against drug cartels;
ideological terrorist movements involved in drug trafficking, and have enhanced its law
enforcement and judicial systems. As I mentioned above, the Colombian experience has
become an important international standard for how to transform a nation once at great
risk from narco-terrorists into a nation able to defend its people and its institutions with
justice, security, and growing economic prospects.

4. As of 2010, drug offenses make up approximately 29% of all federal offenders currently
imprisoned in the federal system. Approximately 17.7% of those drug offenders were

3

1386

convicted of methampbctamine-related crimes, and those offenders serve the second
longest average length of federal imprisonment. Methamphetamine is a particular
problem in the State of Oklahoma, and federal drug policies appear to have done little to
reduce the supply of or demand for this drug in Oklahoma.

a. Do you have a strategy in mind for reducing the supply of methamphetamine
and/or how to coordinate with state and local law enforcement, specifically in the
states with the highest usage rate, to address the supply of and demand for this
drug? Please explain.

ANSWER: The passage of the Combat Methamphetamine Epidemic Act (CMEA), which
restricted the diversion of precursor chemicals such as pseudoephedrine made it harder for
people to produce meth. A key element of any strategy to reduce methamphetamine must
be reducing access to precursor chemicals such as pseudoephedrine. Laboratory incidents,
including those in Oklahoma, fell steeply after passage of the CMEA but are now
increasing, particularly in the south and Midwest. I understand ONDCP is closely
following the effect of legislation passed in both Oregon and Mississippi that returned
pseudoephedrine and ephedrine to prescription only status. The number of
methamphetamine lab incidents in both states has fallen dramatically since the passage of
this state legislation. Methamphetamine produced in Mexico is also a rising threat, as we
can tell from border seizures. Additionally, I understand that restricting the international
flow of precursor chemicals now being smuggled into Mexico and Central America is a
high priority for the Office of Supply Reduction, and these efforts will be aided by the
developments occurring in conjunction with the Merida Initiative and the Central America
Regional Security Initiative. Coordination with state and local law enforcement as well as
tribal partners is critical to stemming the production of methamphetamine in the United
States. If confirmed, I will work closely with my counterpart. Deputy Director of the Office
of State, Local, and Tribal Affairs, Ben Tucker and leverage his oversight of the High
Intensity Drug Trafficking Area Program to connect with our state, local and tribal
entities.

b. What is your assessment of the threat to our country, particularly our youth, of
methamphetamine versus other types of drugs?

ANSWER: Methamphetamine is a very dangerous threat to the American people,
particularly our youth. While the average age of first time meth use is older than for other
drugs, the threat to youth also lies in the toxic nature of meth labs and the fact that
children are too often exposed to these labs in the home. Meth is uniquely dangerous
because it can be manufactured with easily available ingredients.

Meth intoxication too often leads to violent, irrational behavior that threatens others. In
fact, meth use is a major risk to public health. Because of the effect of meth on users and
how it is manufactured, there is a disproportionate impact of this drug on law enforcement
and on community health. That said comparing meth to other drugs is difficult. There is no
question that the effect is disastrous. Yet it is clear to those who have experienced meth in
their lives or in their communities, the drug is particularly vicious. Though the absolute

4

1387

number of users remains smaller than the other major drugs of abuse, the disproportionate
impact on meth use on families exposed to its production or at the mercy of meth-related
violence and illness, this drug must be at the forefront of our supply and demand reduction
efforts.

5

1388

Responses of Stephen N. Six

Nominee to be United States Circuit Judge for the Tenth Circuit
to the Written Question of Senator Chuck Grassley

1. On April 2, 2010, you issued a statement on the constitutionality of the health care
law stating, “1 do not believe that Kansas can successfully challenge the law. Our
review did not reveal any constitutional defects, and thus it would not be legally or
fiscally responsible to pursue the litigation.” Since enactment of the Affordable Care
Act, two federal district court judges have held the individual mandate in the Act to
be unconstitutional.

a. Do you stand by your determination that there are no “constitutional
defects” with the health care law?

Response: As Attorney General I had the research attorneys in our office review
and analyze each of the constitutional claims advanced in the challenges to the
federal healthcare legislation. The conclusion of the attorneys in the office and
my conclusion after that review was that there was little to no chance of
succeeding on the constitutional challenges. However, subsequent to April 2,
2010 when 1 made that statement, two federal district court judges have studied
the constitutionality of the law and come to different conclusions. The issue is
now in the federal appellate courts and will be resolved ultimately by the Supreme
Court. If confirmed and appropriate for me to hear the case under the recusal
authorities, 1 would follow any applicable Supreme Court or Tenth Circuit
precedent.

b. Given that you took a public stance on this issue when you served as Kansas
Attorney General, will you, if confirmed, recuse yourself from hearing cases
related to the constitutionality of the health care law?

Response: It is difficult to make a decision about recusal on hypothetical cases
that may relate in some way to the federal healthcare legislation when the issues
or facts are unknown. If confirmed, I would follow the recusal statutes and
judicial codes of conduct. After a review of the recusal authorities and a
consideration of this issue, I believe that recusal may be the result.

2. According to a February 3, 2010 Office of Attorney General press release, your
office conducted a multi-jurisdiction drug bust resulting in the arrest of 17
individuals for allegedly manufacturing and selling meth amphetamines.
Unfortunately, it now appears that the prosecution of these individuals may be in
jeopardy. On March 9, 2011, Judge Brazil, in State v. Bruce , No. 2010 CR 23 (Kan.
Dist. Ct. Mar. 9, 2011) (order granting motion to suppress) (attached, for your
reference), suppressed the wiretap evidence that was instrumental to the cases,
holding that you failed to comply with federal law requiring the state’s principal
prosecutor to authorize the application for electronic wiretaps. As the state’s

1389

Attorney General, you were the principal prosecutor, but the wiretap application
was approved not by you, but an Assistant Attorney General.

a. According to Judge Brazil, you applied for only two wiretaps during your
tenure as Attorney General. The first was signed by you, but the second was
not. Why did you authorize AAG Disney to sign the wiretap application,
rather than signing it yourself?

Response: Mr. Disney was the Deputy Attorney General in charge of the criminal
division. He proposed the procedure where 1 would authorize the wiretap but
delegate the necessary steps to get the documents before the judge to him. Mr.
Disney was an experienced prosecutor and 1 relied on his presentation in this area
of criminal law.

b. When you gave written authorization to AAG Disney to apply for ex parte
orders authorizing the interception of wire, oral or electronic communication
in this case, were you aware of the Kansas Supreme Court’s decision in State
v. Farha, 218 Kan. 394 (1975) that a prior Kansas statute was unlawful
because it purported to grant authority to an assistant attorney general to
make an application for a wiretapping order, rather than vesting that
authority in the principal prosecuting attorney, as called for by 18 U.S.C. §
2516(2)? If you were aware of the ease, how did it factor into your decision to
delegate to AAG Disney?

Response: I do not recall being aware of this case.

c. Were you aware of the federal statute (18 U.S.C. § 2516(2)) requiring
minimum standards in authorizing the use of a wiretap in drug investigations
when you gave AAG Disney authorization to apply for a wiretap? If so, how
did this factor into your decision to delegate to AAG Disney?

Response: 1 participated in a briefing by Mr. Disney where the procedure
described in 2a was proposed. I do not recall if he presented information on this
statute. 1 was not independently aware of it.

d. Even assuming that Kansas state law permitted you to delegate the authority
to apply for wiretaps -

i. Do you believe that 18 U.S.C. § 2516(2) permits a state to adopt more
permissive wiretap authorization standards than those required by
federal law?

Response: I have never considered that issue. If confirmed and presented
with this issue I would apply the applicable Supreme Court and Tenth
Circuit precedents.

2

1390

ii. Do you agree with the Kansas Supreme Court in In re Olander, 213
Kan. 282, 285 (1973) that both the Kansas legislature and the U.S.
Congress “have carefully restricted the right to apply for the use of
electronic bugging devices to a very select coterie of public officers”
because “[njo area of the law is more sensitive than that of electronic
surveillance, since such activity intrudes into the very heart of
personal privacy”? Please explain your answer.

Response: Yes. I believe that balancing the needs of law enforcement to
infiltrate drug gangs with the personal privacy interests of all Americans is
a very sensitive area and requires careful consideration.

e. According to Judge Brazil, both you and AAG Disney testified that the
authorization you granted was signed specifically in regard to this case, “but
the authorization on its face appears to be unlimited in time and
circumstance.” Was it your intention to give AAG Disney unending
authority to apply for wiretap orders?

Response: No.

f. Is it your belief that K.S.A. 75-710, which grants general authority to
assistant attorneys general to act on behalf of the attorney general,
supersedes K.S.A. 22-2515, which specifically designates that the attorney
general must apply for an order authorizing electronic surveillance, despite
the general principle of statutory interpretation that general statutory'
provisions do not repeal previously enacted specific statutory provisions
unless done so explicitly? In your answer, please explain your understanding
of how these two statutes operate together.

Response: After farther consideration of the statutes as a result of this case, I
believe the attorney general should not delegate procedural responsibility to
obtain a wiretap to a Deputy Attorney General.

g. According to Judge Brazil’s findings of fact, you made a “cursory but not full
examination of the application” prior to authorizing Assistant Attorney
General (AAG) Barry Disney to apply for ex parte orders. State v. Bruce, No.
2010 CR 23, Order Granting Mot. to Suppress at 5. Is this accurate? If so,
why did you fail to give your full attention to such an important case?

Response: Under the procedure described in 2a, 1 authorized the wiretap, but
delegated actions in the wiretap process to the Deputy Attorney General in charge
of the criminal division. At the time 1 believed I fully considered the request. In
hindsight l should not have delegated actions in the wiretap process to the Deputy
Attorney General in charge of the criminal division.

3

1391

h. According to Judge Brazil, “there appears to have been no policy or
procedure in place in the attorney general’s office to ensure compliance with
federal or state wiretap legislation.” State v. Bruce, No. 2010 CR 23, Order
Granting Mot. to Suppress at 4. Is this accurate? If so, why didn't you have
a policy to ensure compliance with the federal wiretap statute? If not, please
explain the established policy or protocol and indicate whether it was
followed in this instance.

Response: At the time 1 became attorney general I was not aware of any written
policy in place in the Attorney General’s Office dealing with wiretaps and I am
not aware of any policy that preexisted my tenure. When the application for a
wiretap came before me, we followed the procedure set forth in the wiretap
statute. Wiretaps were done infrequently and no one suggested and 1 did not think
of developing a written policy.

i. Do you disagree with Judge Brazil’s decision in this case? Why or why not?

Response: If 1 had been aware of the authorities in Judge Brazil’s opinion at the
time I made the decision to authorize a wiretap 1 would not have delegated actions
in the wiretap process to the Deputy Attorney General in charge of the criminal
division. I am not critical of the Judge’s opinion.

3. Several commentators, including Professor Goodwin Liu, previously nominated to
be a Circuit Judge for the Ninth Circuit, have said that Lopez and Morrison are
difficult or “incoherent” standards in outlining the limitations of the Interstate
Commerce Clause. Do you believe these cases provide a workable limit on
Congress’ commerce power?

Response: In United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison,
529 U.S. 598 (2000) the Supreme Court set forth the limitations on Congress’ power
under the Commerce Clause and held that its power is not unlimited. 1 would apply those
precedents and any other relevant cases of the Supreme Court if confirmed.

4. In your final analysis of the health care law, you determined that challenges to its
mandate requiring that states increase eligibility for Medicaid or risk losing funds
lacked merit saying, “the U.S. Supreme Court for nearly a century has repeatedly
reaffirmed the power of Congress to impose requirements on the States as a
condition of the receipt of federal funds.” However, Supreme Court precedent also
suggests this power is limited. In South Dakota v. Dole , the Court stated that, “in
some circumstances the financial inducement offered by Congress might be so
coercive as to pass the point at which ‘pressure turns into compulsion.’” In that
case, the Court found that the loss of only 5% of federal funds available was not
sufficient to constitute compulsion.

In your view, when, if ever, could a financial inducement to the states by the federal
government constitute compulsion?

4

1392

Response: I do not have an opinion about when pressure would turn into compulsion.
The Supreme Court has held that Congress’ power is not unlimited. If confirmed and
presented with this issue I would follow the precedent of the Supreme Court or any
applicable Tenth Circuit decisions.

5. In testimony before this Committee, former Solicitor General Charles Fried said the
unfunded mandate posed a “constitutional worry” because the funds at issue are
“huge.” Is it your opinion that Mr. Fried’s concerns are misplaced? Why or why
not?

Response: I am not familiar with Mr. Fried’s testimony or his analysis and have not
formed an opinion. Regardless of any opinion 1 would hold, I would follow Supreme
Court and Tenth Circuit precedent on this issue.

6. As Attorney General, you signed onto an amicus brief in Citizens United v. FEC that
argued the Supreme Court should refrain from overturning its decision in Austin v.
Michigan Chamber of Commerce. Austin held that a state statute prohibiting
corporations from making independent expenditures in support of political
candidates from its general treasury was constitutional. In a 5 to 4 decision the
Supreme Court overturned its decision in Austin and held the campaign finance
restrictions on corporations at issue in the case were unconstitutional.

a. Many have been highly critical of the Supreme Court’s decision. Do you
believe Citizens United was correctly decided?

Response: If confirmed as a circuit court judge 1 would apply the precedent of
Citizens United and all Supreme Court decisions regardless of my personal views.

b. If you have not already done so, please take this opportunity to review
Citizens United. Do you believe it is a fair and accurate characterization of
the Supreme Court’s decision to say that it “reversed a century of law”?

Why or why not?

Response: The holding in Citizens United was based on the First Amendment
and the Supreme Court’s many cases applying the First Amendment some of
which are described by the court as conflicting lines of precedent. If confirmed I
would apply the Citizens United precedent as well as any other applicable
Supreme Court precedent.

7. Kansas has a statute providing in-state college tuition to children of illegal
immigrants. While you were Attorney General, a similar law was struck down by a
California appeals court, although this decision was later reversed by the California
Supreme Court. At the time of the appellate court’s decision, you defended the
legality of the Kansas law in the news, saying that “Federal courts have rejected [a
legal] challenge to Kansas law.” However, it is my understanding that the federal

5

1393

court never reached the merits in the case against Kansas’s statute, but dismissed
the case for lack of standing.

a. Current federal law states,

“Notwithstanding any other provision of law, an alien who is not lawfully
present in the United States shall not be eligible on the basis of residence
within a State ... for any postsecondary education benefit unless a citizen or
national of the United States is eligible for such a benefit ... without regard to
whether the citizen or national is such a resident.”.” (8 U.S.C. § 1623)

Do you believe the Kansas statute is consistent with federal law? Why or
why not?

Response: The issue of any conflict between the federal statute and the Kansas
statute was not considered during my time as Attorney General. If confirmed,
should the issue come before the Tenth Circuit; I would apply relevant Supreme
Court and Tenth Circuit precedent.

b. If a state law directly conflicts with a duly enacted federal law, does the State
Attorney General have a duty to refuse to defend the state law?

Response: As Attorney General it was my duty to presume laws passed by the
state legislature were constitutional and to defend those laws if challenged. I do
not recall having an occasion to consider whether a state attorney general has a
duty to refuse to defend state law in a situation where that law was in a direct
conflict with a federal law.

c. Did you ever perform an analysis to determine if a conflict existed? If so,
what was your conclusion and why?

Response: I do not recall performing such an analysis.

8. Do you believe that our federal government is one of limited and enumerated
powers?

Response: Yes, under the Tenth Amendment to the United States Constitution and as the
Supreme Court discussed in United States v. Lopez, 514 U.S. 549 ( 1 995) and United
States v. Morrison, 529 U.S. 598 (2000) our federal government is one of limited and
enumerated powers.

9. What does the concept of separation of powers mean for the federal courts? If
confirmed, will this be a governing principle which you will follow?

Response: Under our Constitution the separation of powers is a fundamental part of the
foundation of our system of government. The separation of powers limits each branch of

6

1394

government to its appropriate role. If confirmed as a circuit court judge, 1 would follow
the Supreme Court and Tenth Circuit precedents in this area.

10. Do you believe it is proper for a judge, consistent with governing precedent, to strike
down an act of Congress that it deems unconstitutional? If so, under what
circumstances, and applying what factors?

Response: Yes, if Congress exceeds its authority under the Constitution, as determined
by Supreme Court precedents, it is appropriate for a judge to strike down an act of
Congress.

11. What is the most important attribute of a judge, and do you possess it?

Response: The most important attributes of a judge are impartially applying the law to
the facts and working hard. I believe I have those attributes.

12. Please explain your view of the appropriate temperament of a judge. What
elements of judicial temperament do you consider the most important, and do you
meet that standard?

Response: A judge should treat all litigants with respect and patience and work hard to
listen and not prejudge issues. I believe I possess these attributes.

13. In general. Supreme Court precedents are binding on all lower federal courts and
Circuit Court precedents are binding on the district courts within the particular
circuit. Are you committed to following the precedents of higher courts faithfully
and giving them full force and effect, even if you personally disagree with such
precedents?

Response: Yes.

14. At times, judges are faced with cases of first impression. If there were no controlling
precedent that dispositively concluded an issue with which you were presented, to
what sources would you turn for persuasive authority? What principles will guide
you, or what methods will you employ, in deciding cases of first impression?

Response: I would begin with the text of the statute or Constitutional provision at issue.

I would also examine closely analogous Supreme Court or Tenth Circuit cases and cases
that are closely related to the issue from other circuits. Additionally, if the Supreme
Court has developed an approach or framework to decide a closely related issue or area
of law, that can be a useful approach.

15. What would you do if you believed the Supreme Court or the Court of Appeals had
seriously erred in rendering a decision? Would you apply that decision or would
you use your own judgment of the merits, or your best judgment of the merits?

7

1395

Response: If confirmed, I would apply the binding precedent regardless of my personal
views.

16. Under what circumstances, if any, do you believe an appellate court should overturn
precedent within the circuit? What factors would you consider in reaching this
decision?

Response: Precedent within the Tenth Circuit can only be overturned by the entire court
sitting en banc. The ert banc proceedings should be used infrequently and only when an
issue is of exceptional importance or when it is required to establish uniformity in the
panel decisions, as discussed in the federal rules governing appellate procedure. The
principle of stare decisis should govern any consideration to overturn circuit court
precedent.

17. Please describe with particularity the process by which these questions were
answered.

Response: 1 reviewed some of the cases to refresh my recollection and drafted the
answers. I discussed the draft with a Department of Justice staff member. I submitted a
final draft to the Department of Justice for submission to the Committee.

18. Do these answers reflect your true and personal views?

Response: Yes.

8

1396

Senator Chuck Grassley
Additional Questions for the Record
Stephen Six, U.S. Court of Appeals for the Tenth Circuit

I understand from your testimony and your written account of events that, generally, you
allowed your Assistant Attorneys General to handle the legal actions relating to the
prosecution of Planned Parenthood. However, as you rightly concede in your letter, you
were the state’s chief prosecutor and responsible for overseeing all cases in which your
Office was involved, and it was under your name that legal actions preceded. Please
address these questions candidly.

I. In testimony at your nominations hearing, you said that there was “never any
decision on my part to pursue or not pursue” the case against Planned Parenthood.
However, in a February 7, 2008, Associated Press article, you are quoted as saying
the following in relation to the Planned Parenthood investigation, “That case was
closed, and I’m not doing anything to reopen it.” 1 This quotation suggests that you
made an affirmative decision to decline to reopen the case. How is this statement
consistent with your testimony that you never made any decision whether or not to
reopen the case against Planned Parenthood?

Response: As you may be aware, I was not involved in the investigation and prosecution
of Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc.,
which began five years before 1 became Attorney General of Kansas. My understanding
of the events before I became Attorney General is based on information taken from the
following Kansas Supreme Court opinions:

Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc. v.
Kline, 287 Kan. 372 (2008)

State v. Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc.,
291 Kan. 322 (2010)

State of Kansas, ex ret. Stephen Six. Attorney General of Kansas v. Anderson, (Kansas
Supreme Court Case No. 99,050) The case was dismissed without written opinion.
(Attorney General Morrison filed this case and 1 was substituted in after he resigned and 1
was swom in)

Alpha Medical Clinic v. Anderson, 280 Kan. 903 (2006)

I became Attorney General on January 30, 2008. It is my understanding that Attorney
General Morrison completed his investigation of Planned Parenthood and closed the case
six months before 1 took office. After becoming Attorney General, I did not re-review
any previously closed cases in the office. At the time I took office, the ease against
Planned Parenthood, previously investigated by the Kansas Attorney General’s Office

Hanna, John, AP NewsBreak: AG 's office subpoenaed bv Tiller grand jury. Associated Press, February 7, 2008.

1397

and closed, was under investigation by a grand jury in Johnson County, Kansas and
Johnson County District Attorney Kline was prosecuting that same case,

2. When you made the statement quoted by the Associated Press, were you aware of
Judge Anderson's determination that Planned Parenthood’s records - in his
possession as custodian by appointment of the Kansas Supreme Court - appeared to
have been manufactured in violation of Kansas criminal law?

Response: I do not recall being aware of it.

3. Given Judge Anderson’s concerns, as well as his statements questioning A.G.
Morrison's decision to clear Planned Parenthood of wrongdoing, did you or anyone
in your office (including the criminal division) reevaluate A.G. Morrison’s decision
to clear Planned Parenthood of any wrongdoing?

Response: No. At the time I became Attorney General on January 30, 2008, the office
did not re-review any previously closed cases. Additionally at the time 1 became
Attorney General, the case against Planned Parenthood was the subject of a grand jury
investigation in Johnson County, Kansas and the case was being prosecuted by District
Attorney Kline, also in Johnson County, Kansas.

a. If yes, what was the evaluation's conclusion?

Response: Please see the answer to question 3.

b. If no, why weren’t Judge Anderson’s concerns -- a District Court Judge with
first-hand knowledge of the situation — considered important enough to
warrant a reevaluation?

Response: Please see the answers to questions 2 and 3.

4. I understand that the mandamus actions undertaken by the Attorney General’s
office against District Attorney Kline (See CHPP v. Kline) and Judge Anderson (See
Morrison v. Anderson) were commenced prior to your appointment. However, as
Attorney General, your office continued to pursue these actions. Given the issues
mentioned above, did you, or anyone in your office, reevaluate the legal positions
taken by A.G. Morrison in these cases? Please explain why or why not. If your
office did reevaluate the legal positions please explain the conclusion of that
evaluation.

Response: After I became Attorney General, the Kansas Supreme Court ordered that my
office file a brief in each case. The brief that was filed in the case represented the
position of the Attorney General’s Office, i do not recall re-evaluating any previous
position of the Attorney General’s Office in coming up with the position taken by my
office and filed with the Court. Assistant Attorneys General drafted the briefs and they
were filed with my approval. In the mandamus action filed by Planned Parenthood

2

1398

against Kline, my office sought the return of the file taken by Kline from the Attorney
General’s Office, It is my understanding that this is the same position taken by Morrison.
In the mandamus action against Judge Anderson my office sought Court supervision of
the medical records. It is my understanding that Morrison sought to have the records
returned to Planned Parenthood.

5. At your nomination hearing, I asked you whether you were ever pressured by
Governor Sibelius or anyone in her administration not to pursue charges against
Planned Parenthood. You responded in part, “I never had a discussion with her
about any topics or any cases in the Attorney General’s office in our criminal
division.” Did you, or anyone in your office, communicate with anyone in the
Governor’s Administration about pursuing criminal charges against Planned
Parenthood? If so, please explain the nature of those conversations and with whom
they transpired.

Response: I did not discuss the topic of pursuing criminal charges against Planned
Parenthood with anyone in Governor Sebelius’ administration. I do not recall anyone in
my office telling me they discussed the topic with anyone in Governor Sebelius’
administration.

CHPP v. Kline

1. When you became Attorney General you replaced A.G. Morrison in the mandamus
action in CHPP v. Kline. A.G. Morrison’s mandamus action sought to have D.A.
Kline return CHPP’s medical records. However, the final brief submitted in your
name sought, “each and every copy of those records that |Kline] has made and any
and all other evidence Kline developed and obtained while he was acting as
Attorney General that he took with him to Johnson County.” ( Comprehensive
Health of Planned Parenthood of Kansas and Mid-Missouri, Inc. v. Kline, 197 P.3d
370, 393 (2008)). If it was not your intent to interfere in any way with D.A. Kline’s
investigation, why was your request for Mr. Kline to return ajl the documents, and
not simply provide your office with complete copies of all the documents in his
possession?

Response: Former Attorney General Morrison intervened in the mandamus action filed
by Planned Parenthood against Kline in July 2007 and sought return of the file containing
the materials from the Judge Anderson inquisition taken by Kline when he left the
Attorney General’s Office. I became Attorney General six months later on January 30,
2008. Pursuant to a Kansas Supreme Court Order my office filed a brief in May 2008
asserting that former Attorney General Kline should return the file as improperly taken
State property. It is my understanding that this is the same position previously taken by
Morrison. ( Memo of AG Morrison In Support of Pet. for Mandamus, at 18)(“retum any
and all evidence produced in response to the now-closed inquisition to the Office of the
Attorney General”). The Kansas Supreme Court in Comprehensive Health of Planned
Parenthood of Kansas and Mid-Missouri, Inc. v. Kline, 287 Kan. 372 (Kan. 2008)
ordered Kline to return a copy of the medical records and the investigation file taken

3

1399

from the Attorney General’s Office but permitted him to keep a copy for his criminal
case against Planned Parenthood.

2. It is my understanding that when Mr. Kline left the AG’s office, he made copies of
the records but deposited the original medical records with Judge Anderson.
Furthermore, it is my understanding that AG Morrison was informed of the
location of the records within the first few days of assuming office. Is this a correct
understanding of the status of the records?

Response: I became Attorney General more than a year after Attorney General Morrison
was sworn in and the activities referenced in the question took place. I do not know the
status of the records when Attorney General Morrison took office. The Kansas Supreme
Court noted that no inventory of the file was completed when Morrison took office and
that no Planned Parenthood records were in the office. CHPP , 287 Kan. at 384.

a. If so, why was it necessary for you to obtain copies of the records, when you
had the originals available to you?

Response: When 1 became Attorney General on January 30, 2008, there were not
any Planned Parenthood records in the office. Prior to my becoming Attorney
General, the Kansas Attorney General’s Office had sought the return of the file
taken by former Attorney General Kline when he left office. I did not re-evaluate
the position taken by the Attorney General’s Office that former Attorney General
Kline should return the file as improperly taken State property.

b. Did you seek to obtain just a return of the records which Mr. Kline obtained
while AG, or did you also seek to obtain any other evidence, including
evidence he may have obtained as a result of his investigation while in his
position as District Attorney?

Response: My office filed a brief in the CHPP v. Kline mandamus action seeking
the return of the file created by Kline while he was Attorney General of Kansas.

c. Was any of the evidence which Mr. Kline had gathered, other than the
original medical records, shared with Planned Parenthood or their
attorneys?

Response: No. It is my understanding that only the medical records were returned
to Planned Parenthood’s attorneys.

3. The Kansas Supreme Court ultimately ruled in Mr. Kline’s favor on the merits of
the case, but ordered him to provide complete copies of all the documents to your
office. Had you been successful in requiring Mr. Kline to return all of the
documents, wouldn’t that have effectively prohibited any case against Planned
Parenthood from going forward?

4

1400

Response: At the time I became Attorney General a case against Planned Parenthood was
going forward before a grand jury in Johnson County, Kansas. The grand jury case
against Planned Parenthood continued until March 2008 when the grand jury refused to
return an indictment.

My office was not involved in Kline’s prosecution of Planned Parenthood in Johnson
County, Kansas. The Court’s recitation of the facts in State v. CHPP, 29 1 Kan. 322, 338
(2010) show that Kline had access to the Planned Parenthood records from Judge
Anderson and that pursuant to Kline’s subpoena Judge Anderson testified and brought the
records to court. Later in Kline’s case, as discussed in State v. CHPP, he issued another
subpoena to Judge Anderson seeking the Planned Parenthood records that was quashed
by Johnson County District Court Judge Stephen Tatum. Kline appealed Judge Tatum’s
order and in State v. CHPP. 29 1 Kan. 322 (20 1 0), the Kansas Supreme upheld portions of
the order and reversed portions of the order and allowed Judge Anderson to produce the
Planned Parenthood records. State v. CHPP, 291 Kan. at 363.

a. If so, do you believe this result would have been in the interest of justice,
considering Judge Anderson’s concerns about “manufactured records”?

Response: As discussed in the answer to question 3, the case against Planned
Parenthood was being investigated by a grand jury. As district attorney, Kline
had subpoena power and pursuant to Kline’s first subpoena. Judge Anderson
brought the Planned Parenthood records to court in Kline’s criminal proceedings.
Kline again exercised his subpoena power to obtain the records later in the case
and the district court quashed his subpoena.

4, Did you, or anyone in your office, have a conversation with anyone representing
Planned Parenthood or any representative of Planned Parenthood regarding your
brief filed in CHPP v. Klein ? If so, please explain the nature of those conversations
and with whom they transpired.

Response: I did not have any conversations with Planned Parenthood’s attorneys or any
representative of Planned Parenthood on this topic. I do not recall anyone in my office
telling me they had conversations with Planned Parenthood’s attorneys or any
representative of Planned Parenthood about the brief filed by the Kansas Attorney
General’s Office.

5. Did you, or anyone in your office, have discussions with then Governor Sibelius, or
anyone in her Administration concerning the mandamus actions against D.A.

Kline? If so, please explain the nature of those conversations and with whom they
transpired.

Response: 1 did not discuss the topic of Planned Parenthood’s mandamus action against
former Attorney General Kline with Governor Sebelius or anyone in Governor Sebelius’
administration. 1 do not recall anyone in my office telling me they discussed the topic
with Governor Sebelius or with anyone in Governor Sebelius’ administration.

5

1401

Morrison v. Anderson

1 . When you became Attorney General you also replaced former A.G. Morrison in his
mandamus action to require Judge Anderson to turn over the CHPP medical
records in his custody. Were you, or members of your office, aware of Judge
Anderson’s statement that to return the documents obtained from Planned
Parenthood, as you requested, “would unacceptably increase the risk that evidence
could be lost, destroyed or compromised. ..it is difficult to understand how this
could benefit the citizens of Kansas”?

Response: I was not aware of Judge Anderson’s statement. I do not recall anyone in my
office discussing Judge Anderson’s statement with me.

a. If so, did your office take into account Judge Andersons concern in your
continuation of the mandamus action? Please explain why or why not.

Response: Morrison filed the mandamus action against Judge Anderson six
months before I became Attorney General. It is my understanding that Morrison
sought to have the medical records returned to Planned Parenthood.

In the mandamus action against Judge Anderson, my office sought Kansas
Supreme Court supervision and protection of these records. The motion
suggested that the Court consider quashing the subpoena issued by Kline and
leaving the records with Judge Anderson during the pendency of the mandamus
case, placing the records in the custody of the Clerk of the Supreme Court or with
District Court Judge Stephen Tatum who was assigned to the criminal case
against Planned Parenthood. Any of these actions would, in my view, protect the
records.

2. Did you or anyone in your office have a conversation with anyone representing
Planned Parenthood or any representative of Planned Parenthood about seeking a
judicial order compelling Judge Anderson to return the medical records in his
possession? If so, please explain the nature of those conversations and with whom
they transpired.

Response: Former Attorney General Morrison intervened in the mandamus case against
Judge Anderson seeking return of the medical records in July of 2007, six months before
I took office. After I became Attorney General on January 30, 2008, 1 did not speak with
anyone representing Planned Parenthood or any representative of Planned Parenthood
about this topic. I do not recall anyone in my office telling me they spoke with anyone
representing Planned Parenthood or any representative of Planned Parenthood about the
mandamus action against Judge Anderson.

3. Did you, or anyone in your office, have discussions with then Governor Sibelius, or
anyone in her Administration, concerning the mandamus action against Judge

6

1402

Anderson or the eventual emergency protective order sought by your office? If so,
please explain the nature of those conversations and with whom they transpired.

Response: The mandamus case against Judge Anderson was filed under seal. I did not
discuss the topic of the mandamus action against Judge Anderson or the motion for a
protective order with Governor Sebelius or with anyone in Governor Sebelius’
administration. 1 do not recall anyone in my office telling me they discussed the topic
with Governor Sebelius or anyone in Governor Sebelius’ administration.

4. During his investigation, Mr. Kline issued a subpoena to Judge Anderson to testify
at a hearing regarding Planned Parenthood. Based on unsealed court documents,
Judge Anderson notified the Kansas Supreme Court of the subpoena and that he
intended to comply with it unless directed otherwise by the Court Six i>. Morrison ,
No. 07-099050-S (2008), Notice of Collateral Proceeding and Receipt of Subpoena
for Records. The same day, you sought an emergency protective order to quash the
subpoena. Is it common practice for the State Attorney General to interfere with
subpoenas and requests for evidence by local prosecutors? If so, can you provide
any examples of other cases where Attorney General has done so?

Response: The Kansas Attorney General’s Office filed the motion for the protective
order to ensure that the Kansas Supreme Court was aware of the subpoena directed to the
records that were the subject of the mandamus case against Judge Anderson pending
before the Court and to ensure that any further movement of the records took place under
the supervision of the Court. The motion suggested that the Court consider quashing the
subpoena, placing the records in the custody of the Supreme Court Clerk during the
pendency of the mandamus case against Anderson, or placing the records in the custody
of Judge Stephen R. Tatum who was handling the criminal case filed by Kline against
Planned Parenthood in Johnson County. The Kansas Attorney General’s Office believed
that any of these actions would have provided Court supervision and protection of the
records.

5. You cited privacy concerns in your emergency protective order request. You
similarly alluded to such concerns in your testimony before the Committee and in
the written statement you provided to me. But, it is my understanding that the
medical records were redacted to remove any identifying information pursuant to a
previous court order. Is this accurate?

Response: The Kansas Attorney General's Office believed that the records contained
information that could be used to identify a patient. Judge Anderson noted the redacted
records could be used to identify a patient and the Kansas Supreme Court noted this risk
of disclosure of patient privacy from the redacted records in Comprehensive Health of
Planned Parenthood of Kansas and Mid-Missouri, Inc., 291 Kan. 322, 363 (2010).

a. When were the medical records first redacted, and by whom?

7

1403

Response: 1 do not know. When I became Attorney General there were not any
Planned Parenthood records in the office.

b. If the records where redacted to remove patient identification information,
how did they pose privacy concerns?

Response: Please see the answer to 5.

6. Do you agree with Judge Anderson's assessment that the medical records obtained
from the abortion clinics in Kansas pursuant to subpoenas requested by former
Attorney General Phil Kline were redacted of identities even beyond the
requirements of HIPPA? See Morrison i>. Anderson , Case No, 07-99050-S (response
of Judge Richard Anderson to Petitioner Attorney General Paul J. Morrison’s
Petition for Writ of Mandamus) (footnote 1).

Response: 1 have never reviewed the records. 1 have no reason to disagree with Judge
Anderson’s assessment.

General Questions

1. It has been reported that between 2002 and 2003, Kansas abortion providers
drastically underreported incidents of child sexual abuse/statutory rape, filing only
2 reports of child sexual abuse despite performing 166 abortions on children 15
years old or younger. Did you take any action to support or initiate an investigation
into this apparent underreporting? If so, what action did you take?

Response: After 1 became Attorney General in January 2008, 1 am not aware of the
Kansas Attorney General’s Office conducting such an investigation.

2. Did your office have access to reports provided by abortion providers under K.S.A.
65-445 to the Kansas Department of Health and Environment?

Response: After I became Attorney General on January 30, 2008, 1 am not aware of my
office seeking access to any reports under K.S.A. 65-445. The statute provides that the
reports may be disclosed to the Attorney General’s Office on a showing that reasonable
cause exists to believe a violation of the Act occurred.

3. Are the reports provided by abortion providers under K.S.A. 65-445 redacted of
patient identities?

Response: 1 have never reviewed any such reports. The statute, K.S.A. 65-445, provides
that the reports should not contain the patient’s names.

4. Is it accurate to say that one of the reasons that Kansas’s law requires such reports
is to ensure compliance with Kansas’s abortion restriction laws?

Response: Yes.

8

1404

5. Did you ever receive a request from a District Attorney to assist in gaining access to
those reports in order to move forward with a pending criminal case? If so, what
was your response and why?

Response: 1 do not recall anyone discussing such a request with me. If a request was
made in a criminal case by a District Attorney it likely would have been handled by the
Assistant Attorneys General in the Criminal Division.

6. Did you, or anyone in your office, discuss the criminal proceeding against Planned
Parenthood with Kansas Department of Health and Environment staff? If so,
please explain what these discussions entailed.

Response: I did not discuss criminal proceedings against Planned Parenthood with
Kansas Department of Health and Environment staff. I do not recall anyone in my office
telling me they discussed criminal proceedings against Planned Parenthood with Kansas
Department of Health and Environment staff.

7. Did you, or anyone in your office, ever seek to prevent Kansas Department of
Health and Environment staff from working with law enforcement officers or
District Attorney Office’s in investigations pertaining to violations of Kansas’s
abortions laws?

Response: 1 did not seek to prevent Kansas Department of Health and Environment staff
from working with law enforcement officers or a District Attorney’s office. 1 am not
aware of anyone in my office doing so.

8. What is your understanding of the state of the law in Kansas, as enunciated by the
State Supreme Court regarding who can enforce Kansas abortion law? Can a
District Attorney do so, or is it limited to the AG’s office? It seems the Supreme
Court has taken contrary views on this issue. Can you provide any clarification?

Response: My understanding is that the Kansas Attorney General’s Office docs not have
original criminal jurisdiction for criminal cases. The Kansas Attorney General’s Office is
required to be asked by a district or county attorney to assume jurisdiction in a case in
order to become involved as prosecutors.

9

1405

Responses of Stephen N. Six

Nominee to be United States Circuit Judge for the Tenth Circuit

to the Written Follow-Up Questions of Senator Chuck Grassley

1. In Question 2(d)(i), I asked if you believed that 18 U.S.C. § 2516(2) permits a state to
adopt more permissive wiretap authorization standards than those required by
federal law. You responded, “I have never considered that issue.” Part of my
evaluation of your nomination will be based on my assessment of your ability to
properly interpret federal statutes and applicable precedent. This was an issue you
should have considered prior to delegating the authority to authorize wiretaps, but
apparently did not. Please take this opportunity to review the statute and any
relevant case law and answer the question.

Response: Section 2516(2) provides that an appropriate state level official may, if
authorized by state statute, apply to a judge for a wiretap and “such judge may grant in
conformity with section 2518.” Case law has interpreted this provision as allowing states
to enact more restrictive legislation than the federal statute, but not less restrictive. State
v. Farha , 218 Kan. 394, 400 (1975).

2. In response to Question 2(d)(ii), you said that “balancing the needs of law
enforcement to infiltrate drug gangs with the personal privacy interests of all
Americans is a very sensitive area and requires careful consideration.” Do you
believe that you gave “careful consideration” to this case when delegating the
wiretap application to Mr. Disney, despite your admission that you were not aware
of relevant Kansas and federal statutes and case law when making that decision? If
no, why did you not give this matter “careful consideration”?

Response: The Deputy Attorney General presented the procedure of delegating steps in
the wiretap application process to me and 1 relied on his presentation that the procedure
complied with the requirements of the wiretap statute. The procedure in this case was
that an Assistant Attorney General and the law enforcement officers working on the case
determined that the office should request judicial approval for a wiretap. The Assistant
Attorney General then presented this information to the Deputy Attorney General who
agreed that an application was warranted. The Deputy Attorney General then briefed me
on the request to proceed with judicial review of a wiretap application and the supporting
reasons required by the wiretap statute. 1 authorized proceeding with an application. The
Assistant Attorney General, the law enforcement officer and the Deputy Attorney
General completed the application, supporting affidavits and presented the materials and
swom testimony to a judge for review. The judge reviewed the materials and approved
the wiretap. At the time of the procedure described above, 1 thought we were complying
with the legal requirements of the wiretap statute. 1 now believe 1 should not have
delegated steps in the wiretap application process to a Deputy Attorney General. 1 should
have reviewed this area of law myself. I am responsible for the error.

1406

3. In your response to Question 2(e), you said that you did not intend to give Mr.
Disney unending authority to apply for wiretap orders. If that was the case, why
didn’t the delegation stipulate that it was limited to these specific circumstances?

Response: 1 discussed the application procedure with the Deputy Attorney Genera! and
from this conversation he understood he was required to get my authorization to proceed
with an application for a wiretap. I would agree that the written delegation is not limited
to these specific circumstances. I cannot say that the delegation would have been better
if it was limited in writing to these specific circumstances because, as I stated in the
answer to question 2, 1 should not have delegated steps in the application process to the
Deputy Attorney General.

4. In Question 2(f), I asked you to explain your understanding of how K.S.A. 75-710
and K.S.A. 22-2515 operated together. You did not answer that question. Please
take this opportunity to carefully consider the question and provide an answer.

Response: Section 75-710 provides that “[assistants [appointed by the Attorney
General] shall act for and exercise the power of the attorney general to the extent the
attorney general delegates them the authority to do so.” Section 22-2515, the specific
statute relating to applications for a wiretap, provides that the application for a wiretap
may be made by “[t]he attorney general, district attorney or county attorney.” In State v.
Farha , the Kansas Supreme Court stated that this language in K.S.A. 22-2515, as applied
to the Kansas Attorney General’s Office, meant that the Attorney General was required to
authorize an application for a wiretap under this statute, not an assistant appointed by the
Attorney General. 218 Kan. at 403. Section 22-2515, as the specific statute authorizing
who can apply for an application, would control over the more general statute, K.S.A. 75-
710, relating to delegation of authority of the Attorney General.

5. In your response to Question 2(f), you stated that “After further consideration of the
statutes as a result of this, I believe the attorney general should not delegate
procedural responsibility to obtain a wiretap to a Deputy Attorney General.”
Further, in response to Question 2(i), you stated that “If I had been aware of the
authorities in Judge Brazil’s opinion at the time 1 made the decision to authorize a
wiretap I would not have delegated actions in the wiretap process to the Deputy
Attorney General in charge of the criminal division.”

a. In light of this, please explain why the relevant Kansas and federal statutes
and case law were not considered when making the decision to delegate
authority.

Response: 1 made a mistake in not researching this area of law myself and
personally reviewing these authorities. That was my error. The Deputy Attorney
General presented the process of delegating necessary steps to get the application
documents reviewed and signed by the judge after 1 authorized proceeding with
the application. The Deputy Attorney General’s presentation was that the

2

1407

proposed process complied with the Kansas wiretap statute. I do not recall the
specific authorities that were included in his presentation.

b. Do you not agree that it was part of your responsibility to be aware of these
authorities?

Response: Yes, it was my responsibility.

6. In your responses, you repeatedly stated that Mr. Disney proposed the wiretap
authorization procedure and you relied on his presentation. To the best of your
knowledge, do you believe that Mr. Disney was unaware of the relevant authorities?
Alternatively, do you believe he was aware of them but misapplied them in this
case?

Response: I understand that the Deputy Attorney General’s position was that a
delegation could be appropriate if it is written, specific and limited. The reasoning was
that K.S.A. 75-710 was amended after the State v. Farha case. The amendment relating
to the delegation of the Attorney General’s authority states: “Assistants appointed by the
attorney general shall perform the duties and exercise the powers as prescribed by law
and shall perform other duties as prescribed by the attorney general. Assistants shall act
for and exercise the power of the attorney general to the extent the attorney general
delegates them the authority to do so.” Additionally, his position was that the delegation
in this case was written and specifically delegated the authority to one individual, unlike
the delegation rejected in In re Olander , 213 Kan. 282 (1973). This position is
essentially the argument advanced by Chief Justice Fatzer in the dissent in Farha and In
re Olander , 213 Kan. 282 (1973)(re!ying on United States v. Tortorello, 480 F.2d 764
(2" d Cir. I973)(“having the chief prosecuting officer pass on application which his
assistants prepare and, after he has approved them, having them presented to the issuing
judge. [The objective of 18 U.S.C. 2516(2)] will not be furthered by requiring the chief
prosecuting officer to appear personally before the issuing judge.”). The district court
that reviewed the application procedure in this case held that this position was a
misapplication of the relevant authorities. 1 am responsible for the delegation and the
error.

7. As a federal appellate judge with the duty to apply the applicable precedents, how
would you ensure that relevant statutes and precedents are not overlooked, as you
concede happened here?

Response: Due to the responsibilities and demands of the job of Attorney General in
many different areas of law, 1 relied on briefings or memoranda from Deputy and
Assistant Attorneys General on legal cases and matters assigned to them or in their area
of expertise. 1 usually would not re-research the legal conclusions or re-read the case law
relied upon by these Deputy or Assistant Attorneys General. Previously, when I served
as a state district court judge for three years, I researched the legal issues and read the
case law on issues that appeared before me. If confirmed as a circuit court judge, I would
continue my previous practice and review the briefs submitted in the case, all the relevant

3

1408

cases and statutes at issue, and any other legal sources important to the case. I believe
this would ensure that relevant statutes and precedents are not overlooked.

8. In Question 5, 1 asked you about former Solicitor Genera) Charles Fried’s statement
about the constitutionality of an unfunded mandate. You said you were not familiar
with Mr. Fried’s testimony, and for that reason did not answer the question.
Attached for your convenience is a copy of Mr. Fried’s testimony (see pp. 34-35 for
the relevant statement). Please take this opportunity to review his testimony and
provide a thoughtful answer to the question.

Response: From the reference cited I noted the following comment by Professor Fried:

“FRIED:

The case that comes to mind is South Dakota against Dole, which required the states
— and that wasn't even a funding mandate -- required the states to alter the
drinking age, and threatened them with the withdrawal of 5 percent of highway
funds if they didn't comply.

And the Supreme Court said, "Weil, 5 percent is so little that it's not that much of a
threat."

Implicit in that is would you believe 10 percent? How about 50 percent?

And the unfunded mandate here is huge. And that's why I said to Senator Grassley
that I think there really is a constitutional worry about that. ” (Fried Testimony
provided with these questions, pgs 34-35, emphasis in the copy provided.)

I agree with Professor Fried’s testimony that South Dakota v. Dole, 483 U.S. 203 (1987)
is the Supreme Court case that provides guidance in analyzing when a congressional
incentive moves from pressure into unconstitutional coercion. In South Dakota , the
Supreme Court determined that the incentive offered by Congress to states to raise the
drinking age did not rise to the level of improper coercion. Professor Fried asks whether
a financial penalty of 10% or 50% imposed on a state for failing to follow a mandate
imposed on the states would cross the line drawn by the Supreme Court in South Dakota.
Because it is difficult to know the legal and factual context in which a challenge may be
presented and because the issue could come before me if confirmed, it would be
inappropriate to state agreement in advance on when pressure turns to compulsion in an
unfunded mandate. Professor Fried’s comment concludes that the unfunded mandate in
the federal healthcare legislation is huge and “is a constitutional worry. . .” His comment
about “constitutional worry” in the federal healthcare legislation has been reflected in the
opinions of the various federal district courts that have ruled on the federal healthcare
legislation. As Attorney General my office reviewed the constitutional issues in the
federal healthcare legislation and on April 2, 2010, concluded that there was little to no
chance of succeeding on the constitutional claims. Subsequent to that decision several
federal district courts have ruled on the constitutional concern identified by Professor

4

1409

Fried. As a former state official I am concerned about the challenges presented by the
federal government placing unfunded mandates on the state. If confirmed, were
challenges to the federal healthcare legislation to come before me, as I stated in response
to your first set of questions 1(b), given my public statements on the federal healthcare
legislation 1 believe recusal may be appropriate.

9. In Question 6(b), you did not answer whether or not you believed it was a fair and
accurate characterization of Citizens United v. FEC to say that it “reversed a century
of law.” Please take this opportunity to review the decision, and provide a
thoughtful response regarding whether or not you believe this characterization is
accurate.

Response: In Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), the
Court analyzes conflicting lines of First Amendment cases and overrules Austin v.
Michigan Chamber of Commerce , 494 U.S. 652 (1990)(holding “that political speech
may be banned based on the speaker’s corporate identity”) and McConnell v. Federal
Election Commission, 540 U.S. 93 (2003)(overruling the part relating to a statutory
restriction on independent corporate expenditures). Citizens United, 130 S. Ct. at 886,
913. The Supreme Court states that in overruling Austin “[w]e return to the principle
established in Buckley and Bellotti, that the Government may not suppress political
speech on the basis of the speaker’s corporate identity.” Citizens United, 130 S. Ct. at
913. The Court squared the facts before it with these conflicting lines of First
Amendment precedent and said it was restoring pre-1990 Court precedent. If confirmed
as a judge, I would faithfully apply the Supreme Court’s precedent in Citizens United.

10. In Question 7(a), I asked you about the consistency of Kansas’ statute providing in-
state college tuition to children of illegal immigrants with 8 U.S.C. § 1623. You
responded that this issue “was not considered during my time as Attorney General.”
Respectfully, I did not ask whether it was ever considered during your time as
Attorney General. Please take whatever time necessary and answer the question I
initially asked: do you believe the Kansas statute is consistent with federal law?

Why or why not? Again, I am trying to understand your approach to legal analysis;
simply stating that you would apply relevant precedent does not answer the
question, and is not sufficient.

Response: I have not developed an opinion on the legal issues involved in these statutes.
Any conflict between the federal and state law would implicate the Supremacy Clause
which states: “This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; . . . shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any state to the
Contrary notwithstanding.” U.S. Constitution, Article VI, cl. 2. Under the Supremacy
Clause, the Supreme Court has long recognized that state laws that conflict with federal
law are “without effect.” Maryland v. Louisiana, 451 U.S. 725 (1981). Because this
issue may come before me if confirmed, it would be inappropriate to comment on the
relationship between the state and federal statutes or how I would decide such an issue.

If confirmed as a judge and were this issue to come before the court, 1 would review the

5

1410

relevant Supreme Court precedent and any applicable Tenth Circuit precedent and
faithfully apply that legal authority.

11. In your response to Question 9, 1 asked what the concept of separation of powers
means for the federal courts. In response, you stated that “|t]he separation of
powers limits each branch of government to its appropriate role.” Please take this
opportunity to reconsider the question, and provide a thoughtful answer regarding
what you believe is the “appropriate role” for the federal courts in our system of
government.

Response: Separation of powers in the United States Constitution is a foundational
concept that power should not be concentrated in one branch of government and should
be qualified by checks and balances within the three branches of government. Within
this framework the appropriate role of the federal courts is to interpret the law. The
federal courts “check” that the legislative and executive branches of government are not
exceeding their authority under the Constitution. The role of the federal courts within
this framework is to also “balance” or use its constitutional authority to limit the power of
the other two branches when they exceed constitutional authority. The federal courts
depend on the executive branch because the judiciary has “neither FORCE nor will but
merely judgment” and rely on the executive branch to enforce its judgments. The
Federalist No. 78, p. 394 (G. Willis ed. 1 982)(A. Hamilton). The role of the federal
judiciary is to serve “as the bulwark] of a limited constitution against legislative
encroachments.” The Federalist No. 78, p. 526 (J. Cooke ed. 1 961 )(A. Hamilton). That
role of the federal courts is further developed in Marbury v. Madison, 5 U.S. 137, 180
(1803), where Justice Marshall held that the Constitution was the “supreme law of the
land” and that “a law repugnant to the constitution is void,” thereby establishing the
Supreme Court’s power ofjudicial review.

12. In Question 10, 1 asked you what factors you would consider when determining
whether to strike down an act of Congress as unconstitutional. You did not answer.
Please take this opportunity to answer the question.

Response: If confirmed as a circuit court judge 1 would start with ihe presumption that
laws enacted by Congress are constitutional. If Congress passes a law that is inconsistent
with individual rights secured to the American people under the Constitution, such as
rights secured in the Bill of Rights, it is appropriate for a judge to determine that the law
as applied in the case before the court is unconstitutional, or to strike down the law as
unconstitutional. Similarly, if Congress passes a law that exceeds its enumerated powers
or impermissibly encroaches on state sovereignty, then it is appropriate for a judge to
declare the law unconstitutional. The Supreme Court has used different factors in
reviewing these different types of constitutional challenges. If confirmed as a circuit
court judge I would review the Supreme Court precedent that applied to the type of
review presented in the case and faithfully apply that precedent.

13. In response to Question 2 in the Additional Questions for the Record, pertaining to
your handling of the legal actions relating to the prosecution of Planned

6

1411

Parenthood, you stated that you were unaware of Judge Anderson’s determination
that Planned Parenthood’s records appeared to have been manufactured in
violation of Kansas criminal law. Please explain why you were unaware of this
important finding by Judge Anderson relating to a recent investigation by the
Attorney General’s Office.

Response: I became Attorney General on January 30, 2008. More than one-half a year
before I became Attorney General, the Kansas Attorney General’s Office had closed its
investigation of Planned Parenthood and cleared it of criminal charges in regard to the
records referenced in this question. When 1 became Attorney General I did not re-review
any previously closed cases or engage in a review of the reasons why any cases in the
office had been previously closed or whether the office had correctly or incorrectly
completed its work prior to my tenure. In the mandamus case against Judge Anderson,
previously filed by Attorney General Morrison in July of 2007, the same Assistant
Attorneys General who handled the case prior to my tenure continued to do so. As
Attorney General 1 was responsible for the work of all the Assistant Attorneys General in
the office but I was not involved in reviewing the documents in the case or drafting the
motion and show cause response filed with the Kansas Supreme Court. I did approve the
documents filed by my office with the Kansas Supreme Court. These documents do not
discuss the statement by Judge Anderson.

14. In Question 4 in the Additional Questions for the Record, pertaining to Morrison v.
Anderson, I asked you if it was common practice for the Attorney General to
interfere with subpoenas and requests for evidence by local prosecutors, and if so, to
provide some examples of other cases where the Attorney General has done so. You
did not answer this question. Please take this opportunity to do so.

Response: No. I am not aware of any such examples during my time as Attorney
General.

7

1412

Responses of Stephen N. Six

Nominee to be United States Circuit Judge for the Tenth Circuit
to the Written Questions of Senator Tom Coburn, M.D.

1. Some people refer to the Constitution as a “living" document that is constantly
evolving as society interprets it. Do you agree with this perspective of constitutional
interpretation?

Response: I do not agree with the idea that the Constitution is constantly evolving as
society interprets it. While societal circumstances can change, the Constitution is only
changed through amendments as set forth in Article V.

2. Justice William Brennan once said: “Our Constitution was not intended to preserve
a preexisting society but to make a new' one, to put in place new principles that the
prior political community had not sufficiently recognized.” Do you agree with him
that constitutional interpretation today must take into account this supposed
transformative purpose of the Constitution?

Response: No.

3. Do you believe judicial doctrine rightly incorporates the evolving understandings of
the Constitution forged through social movements, legislation, and historical
practice?

Response: No.

4. The U.S. Supreme Court held in District of Columbia v. Heller, 554 U.S. 570 (2008),
that the Second Amendment of the United States Constitution “protects an
individual right to possess a firearm unconnected to service in a militia, and to use
that arm for traditionally lawful purposes, such as self-defense within the home.”

As Justice Scalia's opinion in Heller pointed out. Sir William Blackstone, the
preeminent authority on English law for the Founders, cited the right to bear arms
as one of the fundamental rights of Englishmen. Leaving aside the McDonald v.
Chicago decision, do you personally believe the right to bear arms is a fundamental
right?

Response: The Second Amendment establishes that right and the Supreme Court
affirmed that right.

a. Do you believe that explicitly guaranteed substantive rights, such as those
guaranteed in the Bill of Rights, are also fundamental rights? Please explain
why or why not.

Response: The Supreme Court stated in McDonald v. City of Chicago , that
certain rights, including most of the rights guaranteed in the Bill of Rights, have
been determined by the Court to be “fundamental” to our country’s “scheme of
ordered liberty” or “deeply rooted in the Nation’s history and tradition,” and have
been deemed to apply against the States.

1

1413

b. Is it your understanding of Supreme Court precedent that those provisions of
the Bill of Rights that embody fundamental rights are deemed to apply
against the States? Please explain why or why not.

Response: Yes. Please see response to 4(a).

c. The Heller Court further stated that “it has always been widely understood
that the Second Amendment, like the First and Fourth Amendments, codified
a pre-existing right.” Do you believe that the Second Amendment, like the
First and Fourth Amendments, codified a pre-existing right? Please explain
why or why not.

Response: Yes. in Heller, the Supreme Court determined “the Second
Amendment, like the First and Fourth Amendments, codified a pre-existing
right.” If confirmed, I would apply the precedent in Heller as well as any other
applicable cases.

5. Some have criticized the Supreme Court’s decision in Heller saying it “discovered a
constitutional right to own guns that the Court had not previously noticed in 220
years.” Do you believe that Heller “discovered” a new right, or merely applied a
fair reading of the plain text of the Second Amendment?

Response: The Supreme Court’s decision in Heller was based on the text of the Second
Amendment and if confirmed I would apply the precedent in Heller as well as any other
applicable Supreme Court cases.

a. Similarly, during his State of the Union address, the President said the

Supreme Court’s decision in Citizens United v. FEC, S58 U.S. (2010),

“reversed a century of law” and others have stated that it abandoned “100
years of precedent.” Do you agree that the Court reversed a century of law
or 100 years of precedent in the Citizens United decision? Please explain why
or why not.

Response: The holding in Citizens United was based on the First Amendment and
the Supreme Court’s many cases applying the First Amendment some of which
are described by the court as conflicting lines of precedent. If confirmed I would
apply the Citizens United precedent as well as any other applicable Supreme
Court precedent.

6. What limitations remain on the individual Second Amendment right now that it has
been incorporated against the States?

Response: As the Supreme Court discussed in McDonald v. City of Chicago and in
Heller some limitations remain, such as possession of a firearm by felons or the mentally
ill or “laws forbidding the carrying of firearms in sensitive places such as schools and
government buildings.”

2

1414

a. Is the Second Amendment limited only to possession of a handgun for self-
defense in the home, since both Heller and McDonald involved cases of
handgun possession for self-defense in the home?

Response: The Supreme Court in Heller and McDonald identified certain types
of Saws that would not infringe on the Second Amendment, howcveT, the Court
did not define the extent of Second Amendment rights under all scenarios. If
confirmed, I would apply the Supreme Court’s precedents in Heller and
McDonald,

7. In Roper i>. Simmons, 543 U.S. 551 (2005), Justice Kennedy relied in part on the
“evolving standards of decency” to hold that capital punishment for any murderer
under age 18 was unconstitutional. I understand that the Supreme Court has ruled
on this matter, but do you agree with Justice Kennedy’s analysis?

Response: If confirmed, I would apply the binding precedent of the Supreme Court in
Roper as well as any other applicable precedent.

a. Do you agree that the Constitution’s prohibition on cruel and unusual
punishment “embodies a principle whose application is appropriately
informed by our society’s understanding of cruelty and by what punishments
have become unusual?”

Response: If confirmed as a circuit court judge and faced with an issue involving
the Eighth Amendment and capital punishment, I would be required to follow the
Supreme Court precedents and the analytical framework in Roper v. Simmons on
what constitutes cruel and unusual punishment.

b. How would you determine what the evolving standards of decency are?

Response: I would follow the guidance of the Supreme Court in Roper and any
other applicable binding precedents.

c. Do you think that a judge could ever find that the “evolving standards of
decency” dictated that the death penalty is unconstitutional in all cases?

Response: The Supreme Court has determined the death penalty is constitutional
except in limited circumstances. Given this binding precedent, I do not believe a
lower court judge could decide otherwise.

d. What factors do you believe would be relevant to the judge’s analysis?

Response: Given that a lower court judge could not decide that the death penalty
was unconstitutional in all circumstances, 1 do not believe such analysis would be
appropriate.

e. When determining what the “evolving standards of decency” are, justices
have looked to different standards. Some justices have justified their

3

1415

decision by looking to the laws of various American states, 1 in addition to
foreign law, and in other cases have looked solely to the laws and traditions
of foreign countries. 2 Do you believe either standard has merit when
interpreting the text of the Constitution?

Response: In interpreting the Constitution I would look to domestic sources of
law and legal authorities unless instructed otherwise by the Supreme Court. In
Roper the Court held that state laws and foreign laws are relevant but not
controlling. I would not consider state law or foreign law in Constitutional
interpretation unless binding Supreme Court precedent required it.

i. If so, do you believe one standard more meritorious than the other?
Please explain why or why not.

Response: Please see response to 7(e).

8. In your view, is it ever proper for judges to rely on foreign or international laws or
decisions in determining the meaning of the Constitution?

Response: In interpreting the United States Constitution I would use domestic legal
sources, unless instructed to do otherwise by binding Supreme Court precedent.

a. Is it appropriate for judges to look for foreign countries for “wise solutions”
and “good ideas” to legal and constitutional problems?

Response: I would not look to the law of foreign counties in evaluating legal and
constitutional problems unless directed to do so by the Supreme Court.

b. If so, under what circumstances would you consider foreign law when
interpreting the Constitution?

Response: If confirmed, 1 would not use foreign laws when interpreting the
Constitution unless directed to do so by the Supreme Court.

c. Do you believe foreign nations have ideas and solutions to legal problems
that could contribute to the proper interpretation of our laws?

Response: 1 believe the United States Constitution and laws should be interpreted
with domestic legal authorities not foreign sources.

d. Would you consider foreign law when interpreting the Eighth Amendment?
Other amendments?

Response: If confirmed, 1 would not consider foreign law in interpreting the
Constitution unless directed to do so by binding Supreme Court precedent.

Roper v. Simmons , 543 U.S. 55 1 , 564-65.

- Graham v. Florida , 130 S.Ct. 2011, 2033-34.

4

1416

SUBMISSIONS FOR THE RECORD
Thank you, Madam Chair and members of the Senate
Judiciary Committee for the opportunity to introduce the
Honorable Assistant Secretary Wilma Lewis, President
Obama’s nominee to serve as the next District Court
Judge of the U.S. Virgin Islands.

As the daughter of the first Native Virgin Islands judge of
our District Court, it is an honor to introduce an
outstanding woman and public servant who with your
confirmation would create another judicial milestone as
she would become the first woman to serve as a federal
judge in the District Court of the U.S. Virgin Islands.

Assistant Secretary Lewis would bring an extensive,
varied and broad wealth of experience from both the
public and private sector to the District Court of the U.S.
Virgin Islands. We are so very proud of her record of
distinguished service and note that any number of other
federal judicial districts would have vied to have her bring
her level of expertise to them as there are also many who
hold her in the highest regard and who would have
wanted to have the honor and privilege that I have to
introduce her to you today!

1417

2

I know her as the devoted daughter of two parents who
themselves gave a collective 67 years of service to the
Federal government: her father, Walter Lewis, in the US
Postal Service and her mother, Juta Lewis, in what was
then the U.S. Customs Service.

We are both members of a church that played an
important role in bringing equity and justice to the
enslaved Africans they came to live among back in the
early 1700s. Wilma continues to actively serve our
Moravian Congregations here in Washington, in
Pennsylvania and at home.

I know that you have her outstanding resume, but she has
served the District of Columbia and our Nation in
positions of high significance and in some of the most
demanding positions in local and federal government. Her
tenures in those offices are of immense pride to the people
of the Virgin Islands and I would not be able to go home
if I did not at least mention some of the more important
ones as I present her to you today.

1418

In 2009, President Obama and Interior Department
Secretary Ken Salazaar called upon Attorney Lewis’s vast
expertise and asked her to serve as the Asst. Secretary for
Lands and Minerals Management at one of the most
challenging times for that agency. She previously served
as Interior’s Inspector General and earlier as Associate
Solicitor in its General Law Division.

Assistant Secretary Lewis served the U.S. Department of
Justice as the United States Attorney for the District of
Columbia as well as on several key boards, committees
and commissions, including the Judicial Nomination
Commission, the Advisory Committee to the Standing
Committee on Fairness and Access of the DC Courts, and
the Advisory Committee on Local Rules of the U.S.
District Court for the District of Columbia.

Atty. Lewis has also had significant experience in the
private sector, working as a Partner at Crowell & Moring,
LLP and Managing Associate General Counsel at Freddie
MAC and before that as an Associate at Steptoe &
Johnson.

1419

Madam Chair and members, throughout her life, Wilma
A. Lewis has distinguished herself at every turn - in
college, in law school and in the coveted legal positions
she has held and executed with honor, distinction and
excellence.

She was valedictorian of her All Saints Cathedral High
School in 1974, graduated with honors from Swarthmore
in political science in 1978 and from Harvard Law School
in 1981. She was featured in the 2003 Harvard Law
Bulletin as among the 50 female graduates who used their
legal education to “take them to extraordinary places.”
She has been recognized by the 24 th Legislature of the US
Virgin Islands in 2002 an has won recognition as 2001
Janet Reno Torchbearer Award, Charlotte E. Ray Award
for excellence as a lawyer, Dr. Martin Luther King Jr.
Dream Keepers Award and Bethune Dubois Institute
Award for her work at the Department of Justice, just to
name a few.

1420

5

Although the nominee has spent most of her professional
life on the United States mainland, she has maintained
close and continuous contact with her home through the
church and several community organizations as well as
through her ties to family and friends. The Virgin islands
Bar unanimously voted her as the most qualified and
recommended her highly for this position.

We are asking that this Body in confirming this
outstanding individual give her the opportunity to do what
has always been her dream - to use all of the experience
and skill she has accumulated over the years of service to
serve her beloved home!

1421

Charles E. Croom, Lt Gen (USAP, Retired)
6823 Stockwell Manor Drive
Falls Church, VA 22043

The Honorable Patrick J. Leahy
Chairman

Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, D.C. 20510

The Honorable Charles E. Grassley
Ranking Member
Committee on the Judiciary
United States Senate
1 52 Dirksen Senate Office Building
Washington, D.C. 20510

Dear Mr. Chairman and Ranking Member Grassley:

I am pleased to write a letter of recommendation for MG Marilyn Quagliotti (Army, retired) for
the position of Deputy Director for Supply Reduction in the Office on ONDCP. MG Quagliotti
reported to me as the Deputy Director, Defense Information Systems Agency from July 2005 to
June 2007. She managed and directed the daily operations of a Defense Agency comprised of
about 6,500 government employees and 1 0,000 contractors with an annual budget of eight billion
dollars.

MG Quagliotti is a charismatic, high energy, no nonsense leader known to quickly identify the
essence of an issue or problem and build the right team and skill set to address and resolve. She
brings with her a practiced history of program management skills and acquisition savvy. She
orchestrated many critical programs from upgrading the White House Situational Room to
significantly reducing the costs to lease commercial satellites for the Department of Defense.

She knows how to lead during intense crisis moments as demonstrated by her management of a
significant cable cut restoral process impacting all undersea cables that provided primary
communications with the Iraq theater. She has a unique ability to take a complex problem and
unpeel the issues back to doable, solvable parts. She has strong management skills and exercised
that daily orchestration of the strategic work efforts of over thirty Senior Executive Service
members and three other flag officers. 1 trusted General Quagliotti with the most difficult tasks
and she succeeded with innovation, energy and leadership never forgetting the customer and
mission she was supporting.

1422

I know of no one more dedicated to government service and our nation. Her core values of
integrity, excellence in all she does and service before self are unquestionable. I strongly
recommend General Quagliotti for this senior position in Government that requires leadership to
deliver results.

Very Respectfully,

(3£cr^, £ —

Charles E. Croom, Lt Gen (USAF, retired)

1423

PRESIDENT-ELECT
JANET DiFIOHE

WESTCHESTER COUNTY

Hi VICE PRESIDENT
MICHAEL C. GREEN
MONROE COUNTY

2ml VICE PRESIDENT
KATHLEEN RICE

NASSAU COUNTY

Jnl VICK PRESIDENT
THOMAS E. MORAN

U VI NOS KIN COUNTY

SECRETARY

ADA EDWARD ». SASLAW

QUEENS COUNTY

TREASURER

ADA REBECCA WINER

NASSAU COUNTY

BOARD OF DIRECTORS

CHAIRPERSON
•Kathleen hogan

WARREN COUNTY

■ROBERT T. JOHNSON

BRONX COUNTY

GERALD V. MOl.LEN
BROOME COUNTY

JON E. Bl DEL MANN
CAYUGA COUNTY

ANDREW J. WYLIE

CLINTON COUNTY

PRANK A. SEDITA

ERIE COUNTY

KRISTY SPRAGUE

ESSEX COUNTY

lAWRENCE PRIEDMAN

GENESEE COUNTY

CINDY P. INTSCHERT
JEFFERSON COUNTY

•CHARLES J. HYNES

KINGS COUNTY

CYRUS H VANCE. JR.

NEW YORK COUNTY

scott d. McNamara

ONEIDA COUNTY

‘WILLIAM J. PITZPATJUCK

ONONDAGA COUNTY

R MICHAEL TA.NTILLO
ONTARIO COUNTY

•PRANCIS D. PHILLIPS II
GRANGE COUNTY

•RICHARD A- BROWN

OUI.ENX COUNTY

RICHARD J. McNALLY, JR

RENSSELAER COUNTY

•DANIEL M. DONOVAN, JR

RICHMOND COUNTY

THOMAS r. ZUGIBE
ROCKLAND COUNTY

NIC OLE M. DUVE

ST LAWRENCE COUNTY

•JAMES A. MURPHY, UL
Saratoga county

•Robert m. Carney
SCHENECTADY COUNTY

•JOHN C. TUNNEV
STEUBEN COUNTY

THOMAS J. SPOTA
SUPPOLK COUNTY
james farrell

SULLIVAN COUNTY

RICHARD M. HEALY

WAYNE COUNTY

•PAST DAASNY president

District Attorneys Association Of The State Of New York

PRESIDENT

Derek P. Champagne
Franklin County

■X>
in
■ru

W April 27, 2011

<£>

The Honorable Patrick J. Leahy
Chairman, Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, DC 205 1 0

The Honorable Charles E. Grassley
Ranking Member, Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, DC 205 1 0

Dear Chairman Leahy and Senator Grassley:

On behalf of the District Attorneys Association of the State of New York, I
write to express our enthusiastic support for the nomination of Michael C. Green for the
position of United States District Court Judge for the Western District of New York.

By way of background, DAASNY was formed in 1909 as a bipartisan
organization to promote sound law enforcement policies in the State of New York. It
consists of the 62 elected district attorneys in the entire state, many of their assistants,
and the state Attorney General. About 40 of our member offices are located in rural
counties, and have fewer than 10 lawyers to work with the police to prosecute all
crimes within their jurisdictions.

The members of DAASNY, Republicans and Democrats, have come to know
Mr. Green well since his election as District Attorney of Monroe County in 2003. In
that capacity, he has tirelessly upheld the ideals of strong law enforcement and has
worked with DAASNY on numerous projects that are important to its law enforcement
mission. Most notably, Mr. Green served as the only prosecutor on New York’s
Sentencing Reform Commission and advocated tirelessly on behalf of the Association
for fair but tough drug laws that would hold accountable and punish the drug dealers
who are ruining our communities and increase treatment options for non-violent drug
addicts. In the face of stiff opposition from a majority of the commission members,
District Attorney Green consistently advocated for laws that would continue to allow
prosecutors to have a meaningful role in ensuring that convicted drug dealers are
appropriately punished.

355 West Main Street, Malone. NY 12953
Tel. (518)481-1544 Fax (518)481-1545
E-mail: dchampag@co.franklin.ny.us

1424

April 27, 2011
Page 2

Our Association’s respect for District Attorney Green and his work is best
demonstrated by the fact that he was elected Vice President of the Association by his
fellow District Attorneys, and was scheduled to take over as President of the
Association this July. This has been delayed a year because of his pending
nomination.

In sum, we have very much appreciated Mr. Green’s commitment to justice and
the battle to keep our communities safe. While we would hate to lose him as a member
of our association, we are confident that he would bring the same work ethic and
commitment to the fair administration of justice as a District Court Judge.

Thank you for your consideration and please do not hesitate to contact me if I
can provide you with any further information that would assist with this process.

Sincerely,

Derek Champagne
President

2

1425

Senator Kirsten E. Gillibrand
Statement for the Record
May 24, 2011

Mr. Chairman, I am pleased to offer my strong support of the nomination of Michael
Charles Green to the United States District Court of Western New York. I commend
President Obama for the superb judgment that he has shown in making this nomination.

Mr. Green has spent the last 24 years as a dedicated public servant to the people of
Rochester and Monroe County. His service in the District Attorney’s office as both an
Assistant District Attorney and now as District Attorney has been with great distinction.
He has shown himself to be a fair and efficient prosecutor, while expressing real
compassion and understanding for victims and their families. Through both of his
elections to the office of District Attorney, Mr. Green has gained support of the
community from across the political spectrum, and his professional reputation as a fair
and independent prosecutor has served the citizens of Western New York well.

Under Mr. Green’s leadership, the District Attorney’s office is combating violent crime
and homicides by targeting armed violent felons, gang members, and those illegally
carrying guns. He has been effective at bringing law enforcement together to attack
crime through his leadership role in efforts such as Operation Impact, Ceasefire, and
Project Exile. Side-by-side with efforts to prosecute violent offenders, Mr. Green is also
working to create more opportunities for our inner city youth in order to reduce crime
numbers and improve his community. He has devoted countless hours to organizations
like the Boys and Girls Club of Rochester where, as a board member, he saw first-hand
the enormous need for more resources. To address that need, he implemented Project
Step Up, using money seized from drug dealers to fund an educational and recreational
program for teens. He truly leads by example, and in 2007, he received the Hallauer
Award from the Rochester Police Department's Rosewood Club for his “extraordinary
contributions to the criminal justice system and the youth of our community.”

As a prosecutor, his compassion for victims cannot be overstated. Early in his career as
an Assistant District Attorney, Mr. Green was prosecuting a murder case when he first
met the victim’s mother, Audrey Smith. Although it was a rocky start, not only did Mike
Green successfully prosecute that case, but he went on to form a relationship with Audrey
that has lasted to this day. Together they helped create an organization called Families
and Friends of Murdered Children and Victims of Violence. This group offers support
and resources for families and victims affected by crimes. Although, it has recently
merged with Rise Up Rochester, it continues to be an asset for the community and is
highly respected by local law enforcement. Through his work with Families and Friends,
Mr. Green was one of the first to be honored with the Audrey Smith Award.

1426

And on a personal note, one member of my staff has known Mike Green for almost 15
years. As a swim coach for his two young daughters. Tori and Meghan, my Rochester
Regional Director, Sarah Clark, has seen firsthand his commitment and dedication to
both his professional life and his family.

As District Attorney, Mike Green has shown himself to be an outstanding prosecutor and
effective advocate for victims’ families. He has demonstrated fairness, effectiveness and
exemplary professionalism throughout his tenure as a prosecutor. I am confident that
President Obama has made an excellent choice in this nominee, and it is without
reservation that I support his confirmation to the U.S. District Court for the Western
District of New York.

1427

Statement of Senator Chuck Grassley
Before the Committee on the Judiciary
On the Nominations of:

Steve Six, to be United States Circuit Judge for the Tenth Circuit

Marina Garcia Marmolejo, to be United States District Judge for the Southern District
of Texas

Michael C. Green, to be United States District Judge for the Western District of New
York

Wilma Antoinette Lewis, to be Judge for the District Court of the Virgin Islands

Major General Marilyn A. Quagliotti, USA (Ret.), to be Deputy Director for Supply
Reduction, Office of National Drug Control Policy

May 24,2011

Madam Chairman:

I extend my welcome to the nominees appearing before us
today. 1 also welcome their families and friends. 1 am eager
to hear their testimony and ask my questions. I expect the
nominees will fully answer my questions. Too often,
nominees appear before us and fail to give meaningful
responses. Unfortunately, a well-worn response to a

1428

question of substance that we hear too frequently is "I will
follow the law, if confirmed.”

That type of response, which sounds coached, even robotic
at times, doesn’t really get us very far with understanding
the competence, integrity and temperament of a particular
nominee. It certainly gives no insight into the thought
process, legal reasoning skills, or general judicial philosophy
of a nominee.

I will insert my full statement into the record.

Stephen Six is nominated to be United States Circuit Judge
for the Tenth Circuit. Mr. Six received his B.A. from Carleton
College in 1988 and his J.D. from the University of Kansas
School of Law in 1993. Following law school, he clerked for
the Honorable Deanell R. Tacha, United States Circuit Judge
for the Tenth Circuit. I note that if confirmed, Mr. Six will fill
the vacancy created by the retirement of Judge Tacha.

2

1429

Mr. Six began his legal career as a litigation associate for
Shamberg, Johnson & Bergman. There he primarily
represented individuals and businesses in environmental,
products liability, business torts, and personal injury cases.
In 2000, he was promoted to partner and remained in that
position until being appointed a Kansas District Court Judge
in 2005.

From 2005 to 2008, Mr. Six served as a District Court Judge
in the State of Kansas’ Seventh Judicial District where he
presided over criminal and civil trials.

In 2008, he was appointed Attorney General. As Kansas
Attorney General, he oversaw criminal investigations, wrote
legal opinions, argued in appellate court, and prosecuted
criminal matters. He ran unsuccessfully for reelection in
2010. Since 2011, Mr. Six has been a partner at Stevens &
Brand where he represents a variety of businesses,
counseling these clients on employment matters and
business issues. The ABA Standing Committee on the

3

1430

Federal Judiciary gave him a unanimous rating of Well
Qualified.”

Michael Charles Green is nominated to be United States
District Judge for the Western District of New York. He
received his B.S. degree in 1983 for Le Moyne College and his
J.D. in 1986 from Western New England College, School of
Law. Mr. Green began his legal career as a law clerk with
Morris and Morris and was soon brought on as a full-time
associate. He worked for attorney James E. Morris, Esq., on
real estate closings and plaintiffs' personal injury claims. He
remained with the firm just less than one year.

In March 1987, he joined the Monroe County District
Attorney's Office as an Assistant District Attorney. He began
prosecuting misdemeanor cases in local criminal courts and
then served as a trial attorney in the felony DWI, County
Court, and Major Felony Bureaus, prosecuting and trying
felony cases. In 1992, he served as Chief of the DWI Bureau,
supervising attorneys prosecuting felony DWI cases and

4

1431

personally prosecuting DWI-related assault and homicide
cases. From 1993 to 2000, Mr. Green was the Deputy Chief
of the Major Felony Bureau and the Capital Crimes
Prosecutor. He assisted with supervisory duties of the Major
Felony Bureau and prosecuted capital, homicide, and high-
profile violent felony cases.

In 2001, Mr. Green became the First Assistant District
Attorney of Monroe County. His responsibilities included
supervising homicide prosecutions, assisting the District
Attorney with administration of the office, and prosecuting
homicide and high-profile violent felony cases.

In 2004, Mr. Green was elected to a four-year term as
District Attorney of Monroe County. He was re-elected in
2008. A majority of the ABA Standing Committee on the
Federal Judiciary rated Mr. Green as "Qualified"; a minority
rated him "Not Qualified."

5

1432

Marina Garcia Marmolejo is nominated to be United States
District Judge for the Southern District of Texas. She
received her B.A. from the University of Incarnate Word in
1992, her M.A. from St. Mary's University Graduate School in
1996, and her J.D., cum laude, from St. Mary’s School of Law
in 1996. After graduating from law school, Ms. Marmolejo
joined the Federal Public Defender’s Office for the Western
District of Texas as an Assistant Public Defender where she
remained until 1998. She then moved to the Federal Public
Defender’s Office for the Southern District of Texas where
she again served as an Assistant Public Defender until 1999.
In these positions, Ms. Marmolejo represented indigent
clients charged with federal felonies and misdemeanors.

In 1999, Ms. Marmolejo worked briefly for the law
offices of Jesus M. Dominguez before becoming an Assistant
United States Attorney (AUSA) in the U.S. Attorney’s Office
for the Southern District of Texas. As an AUSA, Ms.
Marmolejo was assigned to the Organized Crime Drug
Enforcement Task Force (OCDETF) where she handled

6

1433

complex narcotics cases and money laundering
investigations. Ms. Marmolejo was also recruited by the U.S.
Department of Justice on several occasions to teach trial
advocacy skills to foreign prosecutors and agents in
Columbia and the Dominican Republic.

Ms. Marmolejo transitioned into private practice in
2007, joining Thompson & Knight LLP, a white collar defense
firm, as Of Counsel. In 2009, she joined Diamond McCarthy
LLP as Of Counsel and became a partner later that year. She
is currently employed as a partner with Reid Davis LLP. She
describes her current practice as focusing on complex
commercial cases, frequently involving the investigation and
prosecution of civil RICO claims on behalf of foreign
sovereigns impacted by illegal smuggling of goods by multi-
national companies engaged in money laundering activities.
Ms. Marmolejo has received a unanimous rating from the
ABA Standing Committee on the Federal Judiciary as
"Qualified.”

7

1434

Wilma Antoinette Lewis is nominated to be Judge for the
District Court of the Virgin Islands for a term of ten years.
Wilma Lewis received her B.A. from Swarthmore in 1978
and her J.D. from Harvard Law School in 1981. Following
law school, Ms. Lewis worked as an associate at the
Washington law firm of Steptoe & Johnson. She focused on
legal research, drafting of legal documents, and managed
small insurance cases while at the firm. In 1986, she
departed private practice to serve as an Assistant U.S.
Attorney for the U.S. Attorney's Office in Washington, D.C.,
where she focused on civil matters.

After working as a federal prosecutor, Ms. Lewis moved to
the Department of the Interior in 1993, where she first
served as Associate Solicitor. In 1995, she was confirmed by
the United States Senate, and appointed by President
Clinton, to be Inspector General of the Department of
Interior. In 1998, after Senate confirmation, President
Clinton appointed Ms. Lewis to be United States Attorney for
the District of Columbia. She served in that capacity for

8

1435

three years. In 2001, she returned to private practice,
joining Crowell & Moring as a partner handling both civil
and criminal matters.

In 2007, Ms. Lewis joined the Federal Home Loan
Corporation ("Freddie Mac") as managing associate general
counsel in charge of litigation. In 2009, after Senate
confirmation, President Obama appointed Ms. Lewis to be
Assistant Secretary for Land and Minerals Management at
the Department of Interior. She currently holds that
position. The ABA Standing Committee on the Federal
Judiciary gave Ms. Lewis a unanimous rating of "Well
Qualified.”

Marilyn Ann Quagliotti is nominated to be Deputy Director
for Supply Reduction, Office of National Drug Control Policy.
She received her B.S. from Louisiana State University in 1974
and an M.S. from National War College in 1994. She began
her long career in the United States Army in 1975 as Signal
Officer. She continued to climb the ranks and served as an

9

1436

Operations Officer, Commander Aide-de-'Camp to
Commanding General, a Platoon Leader, Commander, and
finally Vice Director of the Defense Information Systems
Agency. The Defense Information Systems Agency is
responsible for building and operating joint command,
control, communications and computer capabilities within
the Department of Defense's transformation from platform
to network operations. She received an honorable discharge
from the U.S. Army in 2007, retiring as a Major General.

As the Commander 13th Signal Battalion, 1st Cavalry
Division, Ft. Hood, Texas, she provided all communications
support to the entire combat division (combat forces,
intelligence, engineers, air defense artillery, etc.). As the
Commander 106th Signal Brigade, Ft. Clayton, Panama, she
was responsible for providing command, control, and
communications support to the joint headquarters of
Southern Command (SOUTHCOM) in Panama and all Army
elements in the country. As Commander 5th Signal
Command, Mannheim, Germany, she was responsible for C4

10

1437

support to all joint headquarters in Europe as well as Army
forces in the European theater and forces deployed from
theater. She provided direct support to Central Command
during the initial phases of Afghanistan operations.

She was the first woman to command a battalion in a
Combat Division; the first woman to be promoted to General
Officer in the U.S Army Signal Corps; the first woman to be
both the Operations Director and Vice Director of a major
Defense Agency (DISA); and the first woman to be a General
Officer Commander in Europe.

From 2007 to 2010, Maj. Gen. Quagliotti worked at Deloitte
Consulting. She served as a Senior Manager from 2007 to

2009, and then as an Independent Contractor from 2009 to

2010. Since 2009, she has also acted as an independent
consultant. Maj. Gen. Quagliotti joined the Durango Group as
an Associate in June 2010, a post she holds to this day.

u

1438

Douglas W. Keeton
9800 Darcy Forest Drive
Silver Spring, MD 20910

21 March 2011

Senator Patrick J. Leahy
Chairman

Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, D C 20510

Senator Charles E. Grassley
Ranking Member
Committee on the Judiciary
United States Senate
152 Dirksen Senate Office Building
Washington, D C. 20510

Dear Mr. Chairman and Ranking Member Grassley:

I am writing to offer my wholehearted support for Major General Marilyn A Quagliotti, USA,
Retired, for the position of Deputy Director for Supply Reduction, Office of National Drug Control
Policy.

1 have known General Quagliotti for twenty years, first as a subordinate, a junior military officer,
under her battalion command at Fort Hood, Texas and in recent years in a friendship context.
While she was my commanding officer I worked directly for her, took her direction and executed
the mission. One would see this relationship as a simpl- superior to subordinate relationship.
But, here is the significant difference she instilled upon me; she made me understand that a true
leader actually works for their subordinates. Her leadership trait of supporting her subordinates
cultivated high moral. She provided the tools that promoted personal growth, team success and
professional achievement! Though the years have passed since I had the privilege to work with
her, time has not diminished the profound impact her leadership had on my professional and
personal life.

Marilyn Quagliotti’s executive leadership and operational knowledge of international
environments, interagency polices, coupled with her ability to garner collaboration for
cooperative interagency efforts has been demonstrated many times throughout her successful
career - both military and civilian. She has the common-sense approach and drive needed to
make a difference in reducing the supply of drugs on the streets of our Great Nation. I cannot
stress enough my confidence in Marilyn Quagliotti.

Sincerely,

! ydufi. l&° W-

Douglas W. Keeton
Small Business Owner/
USA Veteran

1439

Statement Of Senator Patrick Leahy (D-Vt.)

Chairman, Senate Judiciary Committee
Hearing On Judicial Nominations
May 24, 2011

Today we will hear from three of President Obama’s highly qualified nominees for lifetime
appointments to the Federal bench. The Committee welcomes Steve Six of Kansas, nominated
to the Tenth Circuit, Marina Garcia Marmolejo, nominated to fill a judicial emergency vacancy
in the Southern District of Texas, and Michael Green, nominated to fill a judicial emergency
vacancy in the Western District of New York. We also welcome Wilma Lewis, who has been
nominated to a 1 0-year term on the District Court for the U.S. Virgin Islands, and Major General
Marilyn Quagliotti, who has been nominated to be Deputy Director for Supply Reduction at the
Office of National Drug Control Policy.

1 thank Senator Klobuchar for chairing this important hearing. I also thank our Ranking
Member, Senator Grassley, for working with me to schedule the hearing today. 1 hope that we
can continue to take what has been described as “positive action” on these and many other
pending judicial and executive nominations, including holding up-or-down votes in the Senate,
without further extensive delays.

With judicial vacancies continuing at crisis levels, affecting the ability of courts to provide
justice to Americans around the country, we should debate and vote on each of the 14 judicial
nominations reported favorably by the Judiciary Committee and pending on the Senate’s
Executive Calendar. We should be having regular votes on President Obama’s highly qualified
nominees, instead of the partisan filibusters wc have seen since President Obama took office,
including last week’s disappointing vote to block the Senate from considering the nomination of
Professor Goodwin Liu to the Ninth Circuit. A good man with a brilliant legal mind and the kind
of character and temperament we want in a Federal judge, Professor Liu deserved better
treatment by the Senate.

I hope that Senate Republicans can step back from this partisan path and avoid the misplaced
controversies that have hampered our ability to make progress regarding nominations. Before
the Senate leaves for the Memorial Day recess, 1 hope we will be able to consider and confirm
many of the judicial nominations currently pending on the Senate Executive Calendar, some of
which have been ready for final Senate action for months. With cooperation from both sides of
the aisle, we should be able to report favorably another five judicial nominations this week, all of
them highly qualified, consensus nominees. With vacancies still totaling almost 90 on Federal
courts throughout the country, and with nearly two dozen future vacancies on the horizon, there
is no time to delay taking up these nominations. We can take significant steps this week to
ensure that the Federal judiciary has the resources it needs to fulfill its constitutional role.

All of the nominations reported by this Committee and pending on the Senate’s Executive
calendar have been through our Committee’s fair and thorough process. We review extensive
background material on each nominee. All Senators on the Committee, Democratic and
Republican, have the opportunity to ask the nominees questions at a live hearing like the one we
are having today. Senators also have the opportunity to ask questions in writing following the

1440

hearing and to meet 'with the nominefcs. AH of these nominees which the Committee reported to
the Senate have a strong commitment to the rule of law and a demonstrated faithfulness to the
Constitution- All have the support of their home state Senators, both Republican and
Democratic. They should not be delayed for weeks and months needlessly after being so
thoroughly and fairly considered by the Judiciary Committee.

I believe the nominees before the Committee today fit the same mold. Steve Six, the nominee to
the Tenth Circuit, is currently in private practice and a research scholar with Columbia
University Law School’s State Attorney General Program. He previously served as the Attorney
General for the State of Kansas and as a state court judge in Lawrence Kansas. Senators Roberts
and Moran of Kansas have each returned blue slips on the nomination. The American Bar
Association’s Standing Committee on the Federal Judiciary unanimously rated Attorney General
Six well qualified to serve on the Tenth Circuit, its highest possible rating. Attorney General
Six’s father. Justice Fred Six, served on the Kansas Supreme Court for more than 15 years before
retiring in 2005.

Marina Garcia Marmolejo, nominated to fill a judicial emergency vacancy in the Southern
District of Texas, has the support of her home state Senators, Senator Hutchison and Senator
Comyn. Ms. Marmolejo has worked in both public service and in private practice. She began
her career as an Assistant Federal Public Defender and then served as an Assistant U.S. Attorney
before entering private practice. The ABA Standing Committee on the Federal Judiciary
unanimously rated Ms. Marmolejo well qualified to serve as a district judge, its highest possible
rating.

Michael Green, nominated to fill a judicial emergency vacancy in the Western District of New
York, has the strong support of his home state Senators, Senators Schumer and Gillibrand. Mr.
Green is a long-time prosecutor in Monroe County, New York, which includes the city of
Rochester. As an Assistant District Attorney, Mr. Green served as Chief of the DW1 Bureau,
Deputy Chief of the Major Felony Bureau, Capital Crimes Prosecutor, and First Assistant
District Attorney (2001-2003). Since 2004, Mr. Green has been twice elected the District
Attorney for Monroe County. Derek Champagne, President of the District Attorneys Association
of the State of New York, wrote to the Committee in support of Mr. Green’s nomination on
behalf of the 62 elected district attorneys in the state of New York.

Wilma Lewis, the Assistant Secretary for Land and Minerals Management at the U.S.

Department of Interior since her confirmation by the Senate by in 2009, is familiar to many of us
from her previous position as U.S. Attorney for the District of Columbia. She also previously
served during the Clinton administration as the inspector General of the U.S. Department of
Interior. Ms. Lewis was the first African American to serve as Inspector General at the
Department of the Interior and the first woman and second African American to serve as U.S.
Attorney for the District of Columbia. Ms. Lewis has also worked as a partner in private practice
and served as the Chairman of the District of Columbia Board of Elections and Ethics. The ABA
Standing Committee on the Federal Judiciary unanimously rated Ms. Lewis well qualified to
serve as a district judge its highest possible rating.

1441

Retired Major-General Marilyn Ann Quagliotti is the nominee for Deputy Director for Supply
Reduction, Office of National Drug Control Policy. General Quagliotti served honorably in the
U.S. Army for over 30 years, from 1975 to 2007. In a long and distinguished career. General
Quagliotti held several assignments throughout the continental United States, South Korea,
Germany and Panama. In Panama, she spent two years as a Brigade Commander where her unit
supported interdiction efforts to stop the flow of illegal drugs into the United States, and she
advised the Colombian Army on command and control issues related to its efforts to combat
illegal drugs. In 2003, General Quagliotti made history becoming the first female signal soldier
to pin on the rank of major general.

I welcome the nominees and their friends and families to the hearing today.

#####

1442

March 22, 2011

The Honorable Patrick J. Leahy
Chairman

Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, D.C, 20510

The Honorable Charles E. Grassley

Ranking Member

Committee on the Judiciary

United States Senate

152 Dirksen Senate Office Building

Washington, D.C. 20510

Dear Mr. Chairman and Ranking Member Grassley:

The purpose of this letter is to whole heartedly endorse the nomination of Major Genera! Marilyn Quagliotti,
USA Retired as the Deputy Director for Supply Reduction in the Office of the National Drug Control Policy.
Marilyn’s brilliant leadership experience as a senior military officer who has traveled extensively and worked to
solve complex problems qualifies her for this position. She is enormously talented, has extremely good
judgment, and is a person of absolute integrity.

The Deputy Director for Supply Reduction is a key member of ONDCP. The portfolio of this position includes
law enforcement activities outside the United States, source country programs to include economic
development, activities to control international trafficking and availability of illegal drugs. Her nine years of
overseas duty, which included two years in Panama during the time I was the SOUTHCOM Commander, gives
her a perspective that is needed to work with our neighbors on drug trafficking issues. As a senior advisor to the
Columbian Army, she witnessed firsthand the challenges of a country trying to break free of a debilitating
narco-terror threat and build a democracy.

The administration has developed counter narcotics strategies. Strategy documents are only successful if you
have good and competent people focused on achieving results. Marilyn commanded military unit five times.
Command is a unique title in the military. It carries with it responsibility and accountability for everything the
organization does or fails to do. As the Deputy Director for Supply Reduction, she will put this experience to
good use. She will certainly collaborate across the government to have a coherent government effort but she
will always be focused on achieving results.

Marilyn Quagliotti will be a great asset to our efforts to reduce the illegal drug supply.

General, USA (Retired)

1443

Shawii'Michael Malone
Senator

Hegisilature of tbe Virgin Itelanbg

P.O. Box 1690

St Thomas, Virgin Islands 00804
Office: (340)693-3556 / Fax: (340) 693-3642
E-mail: smmalonel @ yaboo.com

Chairman;

Economic Development,
Technology & Agriculture
Committee

Vice Chairman:

Education, Youth &
Culture Committee

Member:

Finance Committee

Health & Hospitals Committee

Human Services, Recreation &
Sports Committee

May 23,2011

Honorable Patrick Leahy
Chairman

U.S, Senate Judiciary Committee

224 Dirkson Senate Office Building 20510

Washington. D.C

Dear Senator Leahy:

With pride I join the people of the United States Virgin Islands in enthusiastically endorsing the nomi-
nation of Attorney Wilma A. Lewis, who President Barack Obama has submitted for consideration to
be District Court Judge for St. Croix. Her nomination is scheduled to be heard before your committee
on May 24, 201 1. The notable achievements of this Virgin Islander are very inspiring, as we have wit-
nessed her progress within the federal government in positions of great responsibility, requiring presi-
dential nomination and senate confirmation.

Attorney Lewis comes from a family whose background involves many years of distinguished service
to the United States Government in several critical agencies. We have proudly witnessed her tenure as
Inspector General of the Department of Interior, United States Attorney for the District of Columbia
and her present assignment as Assistant Secretary of the Department of Interior. In each of her roles
she served with integrity, competence and distinction.

Attorney Lewis’ many achievements in public service are impressive, reflecting a lifelong commitment
to personal discipline, education and community service; matched with a commitment to a fair and bal-
anced interpretation of law. President Obama has made an excellent selection in his nomination of At-
torney Lewis and it is my hope that the committee, in its wisdom, will vote affirmatively for her confir-
mation.

Continuing to Make Positive Things Happen!

Letter to Honorable Patrick Leahy
May 23, 2011
Page 2

1444

I am confident she will bring her many skills and keen sense of justice, matched with her stellar
character to render outstanding service as a District Court Judge for St. Croix.

29 Ih Legislature of the Virgin Islands

Pc: Honorable Charles “Chuck” Grassley
Ranking Member
Senate Judiciary Committee

Attorney Wilma Lewis
District Court Judge Nominee

1445

STATEMENT BY SEN CH ARLES SCHUMER
IN SUPPORT OF MICHAEL C. GREEN, NOMINEE
UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF NEW YORK

May 24,2011

Mr. Chairman, I am pleased and proud to introduce to the committee today the District Attorney
of Monroe County, New York, Michael C. Green. 1 recommended Mike to be nominated for the
federal beneh in the Western District of New V'ork, and I am eonfident that my colleagues will
find him to be as qualified and fair-minded as 1 know him to be.

Mike is a native of Rochester and has literally dedicated his career to helping his community.
Where ever you go in Rochester, you’ll find that Mike is beloved and admired, as a lawyer, as a
public servant, and as a person.

After graduating from LeMoyne College in Syracuse, New York, and Western New England
College of Law in Massachusetts, Mike returned to Rochester, where he worked briefly at the
law firm Morris and Morris.

In 1987, he joined the Monroe County District Attorney’s office, where he has served Rochester
and Monroe County ever since.

Mike has a well-earned reputation for being tough on crime, fair to victims and defendants alike,
and the very model of a public servant.

Mike became the first assistance DA in 2001, and he was elected to the office of District
Attorney in 2004 and again in 2008. Mike’s colleagues throughout the state hold him in the
highest regard —he is currently the President-elect of the New York State District Attorneys’
Association. He was also chosen as the only District Attorney to serve on the New York State
Sentencing Reform Commission, and he currently serves on the New York State Juvenile Justice
Task Force, which is charged with developing and designing a strategic blueprint for
transforming the juvenile justice system in the state of New York - a particularly challenging job
in these tough economic times.

Mike has received too many honors to list in total, but most recently, he received the 2008 Youth
Crime Watch of America award for the National Public Official of the Year.

Mike has also broken new and important ground in the New York criminal justice system. He
was one of the first prosecutors in the state to use a “John Doe” indictment to obtain a later DNA
match for an alleged rapist - who was found in Alabama 10 years later, tried and convicted. He
was a leader in putting together local-federal task forces to clean up the streets, put gang
members away for long prison sentences, and give many parts of Rochester back to their
residents.

Mike embodies every quality that one would want in a federal district court judge - he is an
experienced trial lawyer; he is extremely smart and thoughtful; and he understands and
appreciates his community.

1 am thrilled that Mike is taking this next step towards becoming a federal judge, and I look
forward to his testimony here today.

Thank you.

1446

7016 Maple Tree Lane
Springfield, Virginia

March 21 ,2011

The Honorable Patrick J. Leahy
Chairman

Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, D C, 20510

The Honorable Charles E. Grassley
Ranking Member
Committee on the Judiciary
United States Senate
152 Dirksen Senate Office Building
Washington, D C, 20510

Dear Mr. Chairman and Ranking Member Grassley:

I am honored to recommend Marilyn A, Quagliotti to be the Deputy Director for Supply
Reduction in the Office of National Drug Control Policy, As you know Marilyn Quagliotti
retired from the United States Army as a Major General. I have personally known her
for over 1 5 years and by reputation far longer. She was highly successful leading
commanding Soldiers and large organizations operating in international environments of
both Latin America and Europe. Having served as the Acting Commander-in-Chief for
United States Southern Command, I fully appreciate the criticality of the position for
which she has been nominated and am certain she will serve our Nation extremely well
in that capacity.

As Deputy Commander of United States Army South in Panama during 1996 to 1998, 1
supervised then Colonel Quagliotti where she commanded the theater signal brigade
responsible for the emerging signal and communications architecture for Latin American
and the Caribbean. With the immature and difficult communications environment
throughout the area of operations, she planned and deployed Soldiers in over 50
different operational support missions throughout Central and South America. She was
instrumental to the success of critical operations such as the successful peacekeeping
Military Observer Mission for Peru and Equator (MOMEP), humanitarian and civic action
programs (Nuevos Horizontes), multinational peacekeeping, humanitarian, and
counterdrug exercises, and the emerging counter-drug operations primarily in Colombia

1447

but extending through the Andean Ridge and Central America. Marilyn planned,
coordinated, and executed the annual communications conference with senior Latin
American army officials and subject matter experts. Of note, the commanding general
dispatched her to advise the Colombian Army at a critical development time.

Subsequently, while serving as the Deputy Chief of Staff for Operations, Plans,

Training, and Strategy for United States Army Europe in 2002, I again worked very
closely with General Quagliotti who commanded the 5 th Signal Command and was
responsible for the signal, IT, and communications architecture for the European
Command Area of Operations which spanned from Russia to South Africa. As a Senior
Tactical Commander for the Mannheim military community, she worked diligently and
effectively with German state and local officials to provide added security to military
families immediately following 9/1 1 . She was instrumental in the planning, equipping,
and preparation of the European-based V Corps Headquarters, its Signal Brigade, and
subordinate units as they prepared to lead the invasion from Kuwait into Iraq.
Additionally, General Quagliotti was deeply involved with the planning for the
communications architecture for the potential northern option for Iraq as well as the
overwatch of the satellite step-site at Landstuhl which became essential to guarantee
communications between the United States and Afghanistan.

In every position throughout her military career, General Quagliotti demonstrated superb
leadership, often under difficult operational, cultural, and multinational conditions. Her
savvy diplomatic and keen communications skills enhanced her acceptance and
effectiveness. On both a personal and professional basis, her integrity and ethics are
beyond reproach.

I strongly recommend that you and the Committee favorably consider Marilyn A.
Quagliotti’s nomination to be the Deputy Director for Supply Reduction in the Office of
National Drug Control Policy. Upon Senate confirmation, she will apply the same
selfless service, values and dedication to her duties that have characterized her
performance throughout her military career.

If I can be of further assistance, please do not hesitate to contact me

Very respectfully,

v — A"

Gary D. Speer

Lieutenant General, U S. Army (Retired)

1448

A Communication from the Chief Legal Officers
Of the Following States:

Arkansas, Colorado, Connecticut, Delaware, Guam, Idaho, Indiana, Iowa,
Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Missouri, Montana,
Nevada, New Hampshire, New Mexico, North Carolina, North Dakota,
Oregon, Rhode Island, South Dakota, Tennessee, Utah, Vermont,
Washington, West Virginia, and Wyoming

June 8, 201 1

The Honorable Patrick Leahy
Committee on the Judiciary
United States Senate
Washington, DC 20510

The Honorable Chuck Grassley
Committee on the Judiciary
United States Senate
Washington, DC 20510

Dear Chairman Leahy and Ranking Member Grassley:

It is with pleasure that the under-signed state attorneys general write to express our strong
support for the nomination of former Kansas Attorney General Steve Six to the United States
Court of Appeals for the Tenth Circuit. We have come to know and respect Mr. Six as the top
law enforcement official of Kansas and we firmly believe that he has the knowledge, experience
and temperament to serve in this important position.

Mr. Six is particularly well qualified to become a member of the Circuit Court of Appeals.
Prior to becoming Kansas Attorney General, Mr. Six served as a state district court judge where
he presided over complex civil cases and criminal trials involving major felonies. Managing a
caseload of difficult domestic violence and child sexual assault matters, he earned a reputation
for recognizing and respecting the role of the victims of crime in his courtroom.

As attorney general, Mr. Six consistently demonstrated his outstanding leadership abilities
both within the state of Kansas and nationally. Appointed to the office after a resignation of the
sitting attorney general, Mr. Six tackled the difficult challenge of reestablishing the standing of
the office, by rebuilding the staff, enhancing morale, and ensuring professionalism. At the same
time, he aggressively worked to protect Kansas consumers and seniors from financial scam by
creating a first-rate consumer protection division. Taking on fraud in the state Medicaid program,
Mr. Six significantly increased Medicaid fraud recoveries, returning to the state and federal
government more money in three years than in all the previous years of the Kansas Medicaid
Fraud Division combined.

Demonstrating an unrelenting commitment as attorney general to protect the people of
Kansas, Mr. Six personally prosecuted two major murder cases. Shortly after taking office, he
prosecuted a man charged with first-degree murder for the killing of a Kansas farmer in rural
north central Kansas. He later prosecuted a capital murder case involving the brutal rape and
murder of a young community college student, obtaining convictions before juries in both cases.

1449

Concerned about dangers faced by children and young people on the Internet, Mr. Six
developed Operation Child Shield in the Kansas Attorney General’s Office. This program
targeted individuals viewing and trading child pornography online. More importantly, it
identified and stopped predators seeking to meet children offline for sex. Operation Child Shield
successfully led to the arrest, prosecution and conviction of a substantial number of child
predators, helping to make Kansas a safer place. Mr. Six also organized and co-hosted a summit
on internet safety to share ideas and build cooperation among the Midwestern state attorneys
general and major technology companies.

In addition to working with other states to protect consumers and fight online child
pornography, former Attorney General Six assumed a leadership role among state and federal
officials to combat mortgage fraud. To further these objectives, he actively served on the
National Association of Attorneys General (NAAG) State-Federal Task Force on Mortgage
Enforcement, the NAAG Consumer Protection Working Group and a federal-state initiative with
the National Center for Missing and Exploited Children to crack down on online human
trafficking, Mr. Six demonstrated an ability to work closely with his colleagues of both political
parties by serving on the NAAG Executive Committee. He was selected by his peers to lead the
NAAG Health and Public Safety Committee and serve as Chair of the Midwest Region of
Attorneys General.

We note the American Bar Association’s Standing Committee on the Judiciary
recognized the abilities of Mr. Six with a rating of “Unanimously Well Qualified,” and we
strongly endorse this view. We have witnessed and benefitted from the skill, professionalism
and judgment of Steve Six and we therefore urge the members of the Senate to confirm his
nomination by President Obama to the Tenth Circuit Court of Appeals.

cc: Members of the Senate Committee on the Judiciary
All U.S. Senators

Sincerely,

LG- j - 't F < <--j

John Suthers

Attorney General of Colorado

Dustin McDaniel
Attorney General of Arkansas

Tom Miller

Attorney General of Iowa

George Jepsen

Attorney General of Connecticut

1450

Joseph R. “Beau” Biden, III
Attorney General of Delaware

Lawrence G. Wasden
Attorney General of Idaho

Attorney General of Kentucky

Douglas F. Gansler
Attorney General of Maryland

AjA

Jim Hood

Attorney General of Mississippi

Leonardo M. Rapadas
Attorney General of Guam

Greg Zoeller

Attorney General of Indiana

James D. “Buddy” Caldwell
Attorney General of Louisiana

Martha Coakley

Attorney General of Massachusetts

Chris Koster

Attorney General of Missouri

Steve Bullock

Attorney General of Montana

Catherine Cortez Masto
Attorney General of Nevada

TT&CPtl

Michael A. Delaney

Attorney General of New Hampshire

Gary K. King

Attorney General of New Mexico

1451

Roy Cooper

Attorney General of North Carolina

John Kroger

Attorney General of Oregon

Marty J. Jackley

Attorney General of South Dakota

Mark L. Shurtleff
Attorney General of Utah

Rob McKenna

Attorney General of Washington

Wayne K. Stenehjem
Attorney Genera! of North Dakota

Peter Kilmartin

Attorney General of Rhode Island

Robert E. Cooper, Jr.

Attorney General of Tennessee

William H. Sorrel]

Attorney General of Vermont

Darrell V. McGraw, Jr.

Attorney General of West Virginia

Gregory A. Phillips
Attorney General of Wyoming

1452

Robert T. Stephan
Attorney at Law
12548 W. 123rd Street
Overland Park, KS 66213
Phone (913) 68S-1953
Fax (913) 685-5976

June 20, 2011

The Honorable Patrick Leahy
Chairman

Committee on the Judiciary
United States Senate
Washington, D.C. 20510

The Honorable Chuck Grassley
Ranking Member
Committee on the Judiciary
United States Senate
Washington, D.C. 20510

Dear Senators Leahy and Grassley:

I am writing to support the nomination of former Kansas Attorney General Steve Six to
the United States Court of Appeals for the Tenth Circuit.

I served as a Republican Kansas Attorney General for sixteen years, from 1979 to 1995. 1
am well acquainted with the responsibilities of the Attorney General in all areas of law
that affect the state and the citizens of Kansas, General Six carried out his responsibilities
with distinction and was respected by his peers. He never let politics interfere with his
responsibilities.

Before becoming Attorney General Steve Six was a Kansas District Court Judge and
prior to becoming a District Court Judge he was an outstanding trial lawyer.

As a Judge of The United States Court of Appeals for the Tenth Circuit, General Six will

decide cases based on the law and not personal

considerations.

The American Bar Association’s Standing Committee on the Judiciary gave a rating of
"Unanimously Well Qualified" to General Six and it is justly deserved.

Your thoughtful consideration of his nomination will be appreciated.

Very truly yours,

Robert T. Stephan

1453

PEPPERD INE U NIVER SITY

School of Law

June 24, 2011 office of the dean

Senator Patrick J. Leahy, Chairman

Senator Chuck Grassley, Ranking Member

Committee on the Judiciary

United States Senate

224 Dirksen Senate Office Building

Washington, D.C. 205 1 0-6225

Re: Stephen Six — Nominee for the United States Court of Appeals for the Tenth Circuit
Dear Senators Leahy and Grassley:

Your committee has before it the nomination of Stephen Six of Kansas to serve on the United States
Court of Appeals for the Tenth Circuit. The position that he would fill is the one I was privileged to hold for
25 years since I was appointed by President Ronald Reagan. I recently retired from the court to assume the
responsibilities of Dean at the Pepperdine University School of Law. I have been so gratified and
encouraged that President Obama nominated such a highly qualified and thoughtful lawyer to replace me.
Stephen Six was my law clerk many years ago and went on to distinguish himself as a practicing lawyer,
state district judge, and Attorney General of Kansas. I can say, with confidence, that Stephen Six possesses
the demeanor, intellect, and integrity that characterize the finest judges in the nation. He is open and
independent in his judgment. He demonstrates the highest standards and professionalism in everything that
he does.

Stephen Six was called to become Attorney General of Kansas at a challenging time for our state. He
took to his position a profound dedication to public service and to follow closely the law and the facts of
each case — a necessary combination for a good judge. Although he inevitably had to make some difficult
decisions, they were motivated by his best judgment of what was good for the state at the time. As a judge,
he would no longer be required to factor in the policy calls that are required in the executive branch. Instead,
1 know from working closely with him in my chambers that he would remain fully committed to limiting his
role to interpreting the legal precedent faithfully and constraining himself to the proper role of the judiciary.

Stephen Six is uniquely qualified from his training and his experience to be a judge of great
distinction. His confirmation would be a credit to the work of your committee. I support and urge his
speedy confirmation.

Respectfully submitted,

1 _ ... .",C' "

Deanell Reece Tacha

Duane and Kelly Roberts Dean and Professor of Law
Pepperdine University School of Law

Cc: Senator Pat Roberts
Senator Jerry Moran

24255 Pacific Coast Highway, Malibu, California 90263-4621 ■ 310-506-4621 Fax:310-506-4266

1454

Charles W. < T > urnhu(( > Tfx. “D.

Former Governor, USVl (1999-2007)

May 23, 2011

Honorable Patrick Leahy
Chairman

U. S. Senate Judiciary Committee
224 Dirkson Senate Office Building 20510
Washington, D.C. 20510

Dear Chairman Leahy,

I am Charles W. Turnbull, formeT Governor of the United States Virgin Islands. I am
happy to write this letter in support of the nomination of Wilma A. Lewis, Esq. to be the
next District Court Judge for St. Croix. I have known Attorney Lewis for more than
twelve years, beginning during my two terms as Governor. I have found her to be a
person of great integrity, good and decent character, honesty and humility, who is also
brilliant of mind, hard working fair and has high ethical standards.

In my honest and professional but humble opinion, she is a superb candidate for the
office of judgeship of a U.S. Federal Court. Attorney Lewis comes from a family that
has amassed more than one hundred and twenty years in the federal government of the
United States. In addition to her excellent academic preparations and her noteworthy
legal career in private practice. Attorney Lewis brings excellent public service
credentials to this new assignment. She is presently Assistant Secretary of Interior for
land and Mineral Management after serving as Inspector General of the Department of
Interior and United States Attorney for the District of Columbia.

In sum, it is my firm belief that she would be an excellent judge who would permit the
rule of law to prevail in all instances and would see that justice is served equitably.

Sincerely.

Charks IV. TumSuCC

Chades W. Turnbull, Ph. D.

Former Governor

05/23/?fl11

U-:9RPM fRMT-nll ■ nn\

1455

Tjnf X THE UNIVERSITY OF

KIJ KANSAS 3

School of Law «■

June 27, 2011

Senator Patrick ). Leahy, Chairman

Senator Chuck Grassley, Ranking Member

Committee on the Judiciary

United States Senate

224 Dirksen Senate Office Building

Washington, D.C. 20510-6225

Re: Stephen Six — Nominee for the United States Court of Appeals, Tenth Circuit
Dear Senators Leahy and Grassley:

The undersigned current and former deans of the University of Kansas School of Law
support the confirmation of Steve Six to the United States Court of Appeals for the Tenth Circuit
Mr. Six is a life-long Kansan and a graduate of the University of Kansas School of Law. Many of us
taught Mr. Six when he was a student and we have followed his legal career here in Kansas. We
believe he has the knowledge, experience, temperament and integrity to serve in this important
position.

Mr. Six has served with distinction, in the private practice of law, as a state district court
judge and as the Attorney General of Kansas. He has experience with criminal, civil and
constitutional law. He has significant appellate experience, having argued cases before the Khnsas
appellate courts and the United States Supreme Court. We also note that the American Bar
Association’s Standing Committee on the Judiciary gave Mr. Six a rating of "Unanimously Well
Qualified" and believe it reflects the experience and integrity he has demonstrated throughout his
career.

Selection of judges for the Tenth Circuit should be based on qualifications, experience and
judicial temperament and we believe Mr. Six has these qualities. We strongly urge you to support
Mr, She's confirmation and, at the very least, to allow this nominee to have a vote on the Senate
floor.

Respectfully submitted.

Dean and Professor of Law

Offta of th« Dean

Green Hail ! 1535 W, ! 5lh Street ! Lawrence, KS 66045 7608 (785) 86+4531 i Fax (785) 86+5054

wwwJawJairdu

sK. Logan
Former Dean

■

Martin W. Dickinson
Former Dean

"7UJ

Michael J. Davis
Former Dean

Michael H. HoeHfch
Former Dean

Senator Pat Roberts
Senator Jerry Moran

1457

Women In Military Service For America Memorial Foundation. Inc.

hq@womensraemorial.org

www.womensmemorial.ofg

www.womensmemorialslore.com

703-533-1 155
800-222-2294
703-931-4208 FAX

Dept 560 • Washington, DC 20042-0560

March 25, 2011

The Honorable Patrick J. Leahy
Chairman

Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Buildin
Washington, DC. 20510

The Honorable Charles E. Grassley

Ranking Member

Committee on the Judiciary

United States Senate

152 Dirksen Senate Office Building

Washington, DC. 20510

Subj: Major General Marilyn Quagliotti Recommendation
Dear Senators Leahy and Grassley,

I strongly recommend Major Marilyn Quagliotti for appointment to the position of
Deputy Director for Supply Reduction, Office of National Drug Control Policy.

As President of the Women In Military Service For America Memorial Foundation, I"ve
had the opportunity to work closely. with General. Quagliotti for the past two years on a
project that she envisioned and initiated, titled Women in Leadership. Through interviews
with current and past women general and flag officers, she has been capturing their diverse
and extensive leadership experiences so they can be compiled in a book and film for sharing
with junior women serving today and into the future. The purpose is to help prepare these
young leaders for the professional experiences and challenges that lay ahead for them. A
renowned leader and mentor, General Quagliotti saw this groundbreaking initiative as her
duty to the nation and its future leaders. I join the many generals and admirals she's
interviewed in being convinced that the Women in Leadership book and film will fill a long-
time void in the professional development of our young military women leaders. There is
nothing like it in existence today for military women.

I know General Quagliotti as a proven professional. She's a person of unquestionable
integrity, character and patriotism, Almost from day one of her military career, she was
recognized for her leadership ability. In a highly technical field, she was the first woman to
be advanced from one position of responsibility and leadership to the next in her field. She’ll
be a formidable asset in a tough arena. America will be well served by her appointment.

Sincerely,

'

Wilma L. Vaugh>u

Brigadier General, USAF, Retired

President

1458

-Statement* of'SfeitatoP Mark Warner to the Senate Judiciary Committee

May 25, 2011

Chairman Leahy and Ranking Member Grassley, thank you for holding a nominations hearing to
consider the nomination of Major General Marilyn A. Quagliotti, to serve as the Deputy Director
for Supply Reduction in the Office of National Drug Control Policy.

General Quagliotti currently works as a consultant and executive associate with Durango Group,
Inc. PrioT to this, she honorably served her country for 32 years as a member of the U.S. Army
stationed throughout the continental United States, as well as South Korea, Germany and
Panama. She has advised the Colombian Army on how to fight illegal drugs, and, while
stationed in Panama as a Brigade Commander, she helped support efforts combating the flow of
drugs into the United States.

I am proud to say General Quagliotti is a Virginia resident and I look forward to casting my vote
in support of her nomination and encourage my colleagues on both sides of the aisle to do the
same.

o